Heeding transgender restroom, workplace rules
Establish clear policies to minimize legal riskApril 7th, 2016
Many companies in the Inland Northwest may be unaware that it may be illegal under civil rights laws to prohibit transgender individuals from using gender-specific restrooms that don’t match their gender identity.
Just over a year ago, the federal Equal Employment Opportunity Commission found in a case entitled Lusardi v. McHugh that denying transgender employees access to common restrooms used by other employees of the same gender identity was sex discrimination, violating Title VII of the Civil Rights Act. The commission ruled that such denial was a civil rights violation regardless of whether the employee has had any medical procedure or whether other employees are offended by allowing it.
The EEOC concluded that where a transgender female employee notifies her employer that she is living and working full time as a woman, she must be given unrestricted access to the women’s restroom. The EEOC also found that it was sexual harassment for her supervisor to intentionally and repeatedly refer to her by her former male name and male pronouns.
Although the Lusardi ruling concerned a federal employer, it may serve as a bellwether for private employers with significant implications for employers throughout the Inland Northwest. This is because the EEOC is the federal agency charged with the authority to enforce Title VII of the Civil Rights Act and other related federal laws prohibiting workplace discrimination throughout the United States. And the EEOC has filed discrimination charges against private employers in both Washington and Idaho under similar factual scenarios. It is yet to be seen what a court would do.
However, the EEOC is not the only enforcement agency to take such a position. The U.S. Department of Labor’s Occupational Safety and Health Administration, better known as OSHA, issued a Best Practices Guide to restroom access for transgender workers.
In that publication, OSHA states as a core principle that, all employees, including transgender employees, “should have access to restrooms that correspond to their gender identity.”
Additionally, Washington state is one of a number of states that have issued similar laws or policies that require employers to permit their employees to use restrooms appropriate to their gender identity, rather than their assigned gender at birth, without being harassed or questioned. Other states that have done so include Colorado, Delaware, Iowa, and Vermont, as well as the District of Columbia.
Washington state’s law against discrimination Act specifically prohibits discrimination based upon one’s gender identity in the same manner as it prohibits discrimination based upon one’s religious beliefs or race. Under this law, the Human Rights Commission, the state enforcement agency, has enacted statewide regulations that require employers and public accommodations that maintain gender-specific restrooms to permit transgender persons to use the restroom that corresponds with their gender identity.
Where single restrooms are available, they need to be designated as gender neutral. Under the regulations, Washington employers must permit their employees to use gender-segregated facilities such as restrooms, locker rooms, and dressing rooms in a manner consistent with their gender expression or gender identity.
Likewise, employers can’t request or require an employee to use a gender-segregated facility that is inconsistent with that individual’s gender expression or gender identity, or request or require an employee to use a separate or gender-neutral facility.
Under the state regulations, if another person expresses concern or discomfort about a person who uses a facility that is consistent with the person’s gender expression or gender identity, the person expressing discomfort may be directed to a separate or gender-neutral facility, if available.
Earlier this year, Sen. Doug Ericksen, R-Ferndale, sponsored state Senate Bill 6443 that was aimed at repealing Washington’s regulations. The bill, however, failed on a 25-24 vote.
Other groups now are seeking an initiative to put the issues on the ballot this fall hoping to overturn the regulations. Recently, North Carolina passed such a law that requires local public agencies and school boards to designate multiple-occupancy bathrooms and changing facilities to be used by people based only on their biological sex.
What should employers do now to minimize potential litigation or liability? Regardless of whether your company agrees with the state regulations, they are the law.
Accordingly, employers should update their anti-harassment and anti-discrimination policies and practices.
Employers also should consider obtaining training and advice from legal counsel because there are legal nuances.
As to the basics, practices should ensure that transgender employees may use the restrooms that coincide with their gender identity.
Also, policies should add that it’s a violation of the company anti-harassment policy to permit employees to create a hostile working environment for transgender employees or to refer to transgender employees by names or pronouns that are inconsistent with their gender identity.
William M. Symmes and Amy M. Mensik practice law at the Witherspoon Kelley law firm here as members of its Labor & Employment Group. Symmes also serves as the Group’s chairman.