Originally published on May 3, 2016
Last month, national retail chain Target announced that it would allow transgender employees and customers to choose the restroom and fitting room facilities that correspond to their gender identity. Target took this step in response to laws, and proposed laws, in places like North Carolina and elsewhere, which seek to limit access to public restrooms based on the gender assigned to a person at birth. These laws, and Target's actions, have sparked an animated debate with people expressing strong feelings on both sides of the issue. All of this has left many employers wondering what their responsibilities are with regard to bathroom access for their employees.
This week, the EEOC issued a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, which sheds some light on the matter. The EEOC reminds employers that Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, which encompasses gender identity. The EEOC referenced two recent agency decisions and an opinion from the Fourth Circuit Court of Appeals, all relating to discrimination based on transgender status, and involving access to restrooms and locker rooms. The EEOC points out that contrary state law or local ordinance will not provide any defense to an employer facing charges of discrimination under Title VII. In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of the so called "Bathroom Bills," the EEOC emphasizes that Title VII only addresses workplace conduct, not personal beliefs. As the EEOC explains, "these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination."
OSHA has also offered its guidance to employers on the issue of providing bathroom access to transgender employees. OSHA's Sanitation Standard requires employers to provide employees with prompt access to appropriate sanitary facilities. It is OSHA's position that this requires employers to permit employees to use the facilities that correspond with their gender identity. OSHA suggests that employers provide employees with various options that employees may, but are not required to, choose to use, such as gender-neutral single-occupant restrooms or multiple-occupant restroom facilities with lockable single-occupant stalls. However, OSHA emphasizes that, regardless of the workplace's layout, "all employers need to find solutions that are safe and convenient and respect transgender employees."
So, while the cable news talking heads and social media commenters continue to have their say about the bathroom wars, the EEOC and OSHA have made their position on the issue clear.
Adam is a director in McLane Middleton's Litigation Department, concentrating his practice in the areas of business, employment and probate litigation.
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