Work it Out Blog

Transgender Bathroom Use: A Civil Right

Jul 13, 2016

The following scenario is becoming more common in workplaces: A transgender employee wants to use the restroom of the gender they identify with. A few other employees protest because they feel uncomfortable sharing the restroom with a transgender colleague. The employer, trying to satisfy both sides, designates a unisex restroom for the transgender worker. A sound solution? Not based on current federal guidance.

Much of the recent discussion, policy enactments, and case law involving transgender bathroom use is based on the following interpretation:  the protections of the Civil Rights Act of 1964 extend to claims of discrimination based on gender identity.  This interpretation stretches back at least to December 15, 2014, when Attorney General Eric Holder issued a letter stating that gender identity can be considered in the Civil Right Act’s prohibition against discrimination based on sex.

Both the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) have weighed in on the issue, providing guidance to employers regarding employee bathroom policies, including the following points:

  • Denying an employee equal access to a common restroom corresponding to the gender identity of the employee is sex discrimination under Title VII.
  • An employer cannot require proof from an employee that he is undergoing sex change surgery or any other proof of gender in order to use a particular bathroom.
  • An employer may not restrict transgender employee bathroom use to a unisex bathroom (although all employees may use the unisex bathroom without issue).
  • Contrary state law is not a defense to employers who prohibit bathroom use by transgender employees. 

Recently, a U.S. Circuit Court of Appeals held that a male-to-female transgender teacher’s use of the women’s employee restroom did not create a hostile work environment for purposes of a Title VII sexual discrimination claim brought by a female teacher (Cruzan v. Special School Dist, No. 1). In part, the court’s holding relied on the fact that Cruzan, the teacher who was not comfortable sharing a restroom with a transgender colleague, had other options for bathroom use, including a unisex bathroom and a student bathroom closer to her classroom.  

The takeaway for employers?  Best practices would be to furnish single-sex restrooms and an additional alternative such as a unisex facility with a locking door.  Transgender employees should be allowed to choose the bathroom they prefer to use. Likewise, co-workers who are less than comfortable with such an arrangement should be given the option of using the alternative (unisex) bathroom that affords greater privacy. 

Employers should address employees’ concerns regarding these issues with care, on both sides of the discussion. For any questions regarding bathroom use policy, please feel free to reach out to the employment law attorneys at Day Ketterer Ltd.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.