It’s an issue all employers face or will face—how, if at all, should we accommodate an employee who gives us notice that he or she is transgender and will be coming to work as a person of the other gender. (This morning on the news, I heard of a lawsuit against the federal government by a citizen who objected to having to identify as either gender.) In workplaces where the dress code requires only “professional attire” or a similar gender neutral description, the issue doesn’t seem too deep. (As a federal judge is reported to have said, “the sun will still rise tomorrow” even if a particular employee changes gender presentation.)
But then, the employer thinks about restrooms or locker rooms. Can employers require transgender employees to use a restroom or locker room designated for persons with similar genitalia. Can employers require transgender employees to use gender-neutral, single user restrooms or family restrooms. How far should employers go to protect social norms of gender-specific privacy in the restrooms and locker rooms?
The EEOC has offered guidance on this issue. Employees are entitled to have access to a restroom, and denying access to a restroom designated for women, to an employee who identifies as a woman, is sex discrimination. See EEOC, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” (last visited July 21, 2016). The same can probably be said for locker rooms.
In one case involving a federal employee, the EEOC went further and suggested how employers should communicate with transgender employees and others in the workplace over these sensitive restroom issues:
[Employers] are certainly encouraged to work with transgender employees to develop plans for individual workplace transitions. For a variety of reasons, including the personal comfort of the transitioning employee, a transition plan might include a limited period of time where the employee opts to use a private facility instead of a common one.
Circumstances can change, however . . . . [Employers] should . . . view any plan with a transitioning employee related to facility access as a “temporary compromise” . . . .
We recognize that certain employees may object - some vigorously - to allowing a transgender individual to use the restroom consistent with his or her gender identity. . . . But supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.
Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015).
In short, the EEOC’s view is that transgender employees have a right to access the restroom or locker room designated for those who share the employee’s gender identity. If an employer has visitors or other employees who object to using a shared restroom, the employer may suggest the objecting employee use a single-user or family restroom.
To put a fine point on it, employers are free to offer special accommodation to employees who suffer from gender-based shyness, but the accommodation cannot restrict the rights of their transgender co-workers.
This is an evolving area of law, and we will be keeping a close eye on any developments. In addition, purely private clubs are exempt from some federal civil rights laws, but in many states there are parallel laws from which they are not exempt. Regardless of whether the club is exempt from any such laws, all employers will be faced with conflicting rights and interests of a variety of employee populations, and the transgendered employees will continue to be one of those populations.
William A. Wright is a partner in the law firm of Sherman & Howard L.L.C. in Colorado and Arizona. Bill may be reached at (303) 299-8086 or by email at firstname.lastname@example.org. This article is for informational purposes and is not legal advice.