Q&A

How should a company handle issues related to the use of workplace restrooms by transgender employees?

October 19, 2022

Editor's Note: On October 1, 2022, the U.S. District Court for the Northern District of Texas concluded that the U.S. Equal Employment Opportunity Commission (EEOC) misapplied the U.S. Supreme Court's ruling in Bostock v. Clayton County, Ga. in its June 2021 technical assistance document on LGBTQ+ workplace discrimination protections. The EEOC's guidance expanded the legal definition of sex discrimination to include sexual orientation and gender identity in employment situations. It stated that workers have the right to use a bathroom that corresponds to their gender identity and the right to be free of harassment, including intentional and repeated use of the wrong pronouns. The EEOC is likely to appeal this ruling and may continue to pursue other litigation regarding the interpretation of Bostock as it relates to employer policies and practices. See Federal Judge Strikes Down EEOC's LGBTQ Guidance.

Although progress has been made toward combating transgender discrimination in the workplace, bias still exists. Employers must be prepared to address the issue of which bathroom transgender employees will use and to respond to co-workers' potential concerns. Once an individual discloses his or her plan for gender reassignment surgery, the workplace may become emotionally charged during the transition period. Understanding legal requirements, available options and ways to deal with co-workers' concerns will help establish a foundation for employers to best handle the issue.

Employers need to be familiar with the state gender identity laws to ensure employee protection and to maintain compliance at the state and local levels. For example, California sex discrimination regulations require employers to allow employees to use facilities that correspond to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth.

Federal OSHA regulations require employers to follow federal sanitation standards by providing restroom facilities for all employees. Adequate facilities must be within an acceptable walking distance for employees, regardless of their gender identity.

Employers may want to consider creating a single-use restroom for all employees to use as an addition to gender-specific restrooms, keeping in mind that any decision to require transgender employees to use a certain restroom could be discriminatory and could lead to liability risks for the employer.

When a current employee transitions during his or her employment tenure, it may result in concerns and questions from other employees when the transitioning employee changes his or her restroom preference. An important strategy for employers preparing for transgender employees is the implementation of a nondiscrimination policy and training that includes gender identity and/or gender expression. Once the company has outlined its work rules surrounding gender identify/gender expression, clear expectations will have been established to promote fair and equitable treatment of all employees. Although some co-workers may be unwilling to accept another employee's gender identity, employees should be expected to follow company policy and maintain respectful behavior toward everyone in the workplace. Co-workers with religion-based complaints need to understand that the acceptance of a co-worker's decision to transition has nothing to do with the expectation of changing an individual's mind or beliefs—instead, it is an expectation of inclusion and respect at work. Employees may have different beliefs and opinions related to transitioning employees, but they should clearly understand the company's commitment to a nondiscriminatory and inclusive culture.