Posted 08-19-2015

Olympic decathlon winner Bruce Jenner’s transition to Caitlyn Jenner has focused national attention on transgender issues in our society. But one question dominates the discussion about transgender rights in the workplace: Which bathroom?

This is not the first time that restroom access has been a civil rights issue in America. It took the Civil Rights Act of 1964 to ban the “white” and “colored” water fountains, waiting rooms, and bathrooms prevalent throughout the South. As women entered the workforce in large numbers in the ‘60’s and ‘70’s, they found that many workplaces lacked adequate toilet facilities, since the buildings had been designed under the assumption that not many women would be visiting or working there. Pay toilets came under legal attack in the 1970’s, since women were charged to use a stall while men could use a urinal for free, and, as a result, pay toilets have been banned in many cities and states. And in the 1990’s, the Americans with Disabilities Act mandated construction of washroom facilities that were accessible to people who use wheelchairs.

Now, the issue is what bathroom transgender workers should use. On June 1, 2015, OSHA issued a guidance for employers with the simple advice: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity. OSHA sees this as a health and safety issue, since, “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”

The OSHA guidance lists a number of suggested best practices. First, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. Other options include single-occupancy (unisex) facilities, such as those found on airplanes and many other public places, and multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

The EEOC guidance came out shortly after an EEOC decision in April, 2015, holding that a federal agency illegally discriminated against and harassed a civilian transgender employee by denying her access to the women’s restroom, and by continuing to call her “sir”, and using her former masculine name. The EEOC decision makes it clear that access to the bathroom cannot be conditioned on whether the transgender worker has had surgery or other medical procedure. The employer tried to justify its actions by claiming that other women would object to having the transgender worker use the ladies’ room, but the EEOC firmly rejected that argument, stating that “supervisor or coworker confusion or anxiety cannot justify discriminatory terms and conditions of employment.“

In addition, the states of Colorado, Delaware, Iowa, Vermont, and Washington as well as the District of Columbia, have legislation that bars discrimination in bathroom access, and gives all workers the right to use the facility that corresponds to their gender identity.

What this means to you:

In 2015, when an employer forces a male-to-female transgender employee to use a male bathroom, it’s illegal discrimination, in the same way that it is now settled law that an employer cannot designate restroom use according to race, or refuse to provide equal bathroom facilities for women, or fail to make toilets accessible to employees with disabilities. While no single solution will work for every employer, you want to find safe, convenient and dignified solutions to restroom access issues. The OSHA guidance provides a number of suggestions for you, as does the Human Rights Campaign.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.