Bathroom Choices

Unisex Restroom symbolThe Seattle City Council has adopted legislation requiring single-stall bathrooms now be designated as all-gender facilities. This ordinance
applies to city-controlled restrooms, and also to private restrooms that are available to members of the public. This is part of a bigger conversation in our country about diversity and inclusiveness, something we’re more accustomed to talking about as it relates to religion and race.
We all know that under Title VII of the Civil Rights Act we cannot discriminate against a job applicant or employee based on their gender. But historically, sex discrimination has not had anything to do with sexual orientation.

That is, until now.

  • Just recently the EEOC has made an effort to extend Title VII protections to sexual orientation, transgender status, and gender identity.
  • If this is successful it will mean that employment discrimination and sexual harassment based on all of these will be considered sex discrimination, and all remedies under Title VII will be available.
  • In July of this year, in a landmark ruling the EEOC stated “We conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” The ruling comes in a complaint against the FAA in which a temporary employee states he was not hired for a permanent position because he was gay and that his supervisor repeatedly made homophobic comments about him.
  • Washington State already prohibits discrimination based on gender identity, sexual orientation, and transgender status. What is different is that the EEOC can now be involved in the claims.

The lesson here for employers is that the legal landscape is evolving, and our practices and policies must evolve as well.

It may be time to review and revise your non-discrimination and harassment policies and conduct some training for your supervisors and employees as well.

Back to the bathrooms…

  • Washington State already requires that employers permit transgender employees to use the restroom that is consistent with their gender identity.
  • Single occupancy restrooms, it is recommended, but not required, that they are designated as gender neutral.
  • OSHA recently released A Guide to Restroom Access for Transgender Workers. These are guidelines for best practices, and not requirements, but since the “bathroom question” is often one that employers grapple with, it’s a good resource to access.
  • The guidelines include not asking an employee to provide any medical or legal documentation of their gender identity, and not requiring any employee to use a segregated facility apart from any other employee just because of their gender identity or transgender status.
  • The EEOC has also stipulated that employees have the right to use common restrooms used by employees of the same gender identity, regardless of whether the employee has had any medical procedure to transition gender.

A UCLA study estimates that 700,000 adults in the United States are transgender. You may very well have a transgender worker in your workforce. Treating them with the same respect you treat every other worker will ensure you have a safe and productive workplace for all employees. And after all, isn’t that what we ultimately all want?

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