Law Supports Transgender Choice in Workplace Bathrooms

Going Concern

By MARYLOU FABBO, Esq.

Massachusetts specifically recognizes ‘gender identity’ as a protected classification, providing transgender employees with certain rights, including the right to be treated in the same manner as their co-workers in the workplace.

So, what exactly does ‘transgender’ actually mean? ‘Sex’ is a term used to describe someone’s biological assignment at birth. ‘Gender’ is the sex with which an individual identifies. Gender is an individual’s sense of being ‘male’ or ‘female’ and is often, but not always, expressed through clothing, hair, or other means.

‘Transgender’ is the term used to refer to people who do not identify with the sex they were assigned at birth or with society’s expectations about female and male gender roles. ‘Trans’ is often used when referring to a transgender individual. Trans people may be male-to-female (MTF) or female-to-male (FTM). Whether someone is transgender does not turn on whether the individual has had surgery to reflect his or her gender identity.

There have been many issues surrounding transgender employees, but perhaps the most frequent one that arises for employers is the use of workplace bathrooms. A transgender employee may feel entirely comfortable using the restroom of the gender with which he or she identifies, but the employee’s co-workers may be opposed to sharing a bathroom with the employee.

Co-workers may complain that they feel that their privacy is invaded or that transgenderism offends their religious beliefs. In some situations, trans employees may feel harassed when using the facility that corresponds with their gender identity. Employers often do not know what to do when faced with competing complaints.

In 2011, Massachusetts employment and housing laws were amended to specifically include transgender employees as a protected group, and Executive Order 526 extended Massachusetts equal-rights protections to gender identity and expression. As of Aug. 1, 2015, surgery is no longer a prerequisite to obtaining a new birth certificate in Massachusetts. Legislation has been proposed in Massachusetts that would prohibit discrimination against trans individuals in places of public accommodation, such as public bathrooms.

Similarly, federal courts and agencies such as the Equal Employment Opportunity Commission (EEOC) have held that Title VII of the Civil Rights Act’s prohibition against sex discrimination applies to those who do not act according to sex stereotypes, such as the expectation that only those whose sex is female should wear a dress. In 2015, both courts and federal agencies made their position on bathroom accessibility clear: transgender employees should be permitted to use the restroom with which they identify.

In April of this year, the EEOC ruled that a transgender employee cannot be denied access to common restrooms used by other employees of the same gender identity, regardless of whether the transgender employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so. In May, the Occupational Safety and Health Administration (OSHA) announced an alliance with the National Center for Transgender Equality to promote the safety and health of transgender workers, and in June, OSHA issued a four-page “Guide to Restroom Access for Transgender Workers.”

As most employers are aware, OSHA requires that employers provide employees with sanitary and available toilet facilities so that employees will not suffer adverse health effects that can result when such toilets are not available when employees need them. In its guide, OSHA has made it clear that all employees should be permitted to use the facility that corresponds with their gender identity.

Regardless of an individual’s personal beliefs regarding gender-identity issues, employers should make it clear that all employees are entitled to be treated with dignity and respect in the workplace. Employers must consider restroom modifications that provide options for transgender employees and for co-workers who are not comfortable sharing facilities. Where possible, an employer should consider offering a single-occupancy, gender-neutral bathroom in an equally convenient location. The transgender employee may not be required to use that facility, but it would remain an option for whomever is uncomfortable with the situation — whether it be the transgender employee or a co-worker.

If a single-occupancy facility is not available, employers should have multi-occupant, gender-neutral restroom facilities with lockable stalls available. Employers should also let all employees know that the presence of a transgender employee in the restroom is not per se harassment and that reports of inappropriate behavior or comments in the restroom will be addressed regardless of whether they are asserted against someone who is transgender or not.

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]