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Employers Caught in the Crossfire in the “Bathroom Wars”

Written by: Adam M. Hamel

Published in NH Business Review (8/16/2016)

Over the past few months, cable-news talking heads and social media commenters have been buzzing about so-called “bathroom bills”—legislation proposed in a number of states that is aimed at limiting access to public restrooms and locker rooms based on the sex a person was assigned at birth.  Supporters of these bills say that they are essential for public safety.  Opponents say that they unfairly and illegally discriminate against transgender individuals.  Many of these legislative efforts have failed to result in new laws, and some states, like Massachusetts, have enacted laws specifically allowing people to use facilities that match their gender identities.  However, the debate rages on, and many employers have been left to wonder what their responsibilities are with regard to bathroom access for their employees.  Recent guidance from the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”) may provide some answers.

In a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, the EEOC reminds employers that Title VII—a federal law which applies to private employers with 15 or more employees—prohibits employment discrimination based on sex, including gender identity.  The EEOC cautions employers that that they could still be found liable for discrimination under Title VII even if their conduct is permitted under contrary state law.  In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of 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 covered employers to provide employees with prompt access to appropriate sanitary facilities.  It is OSHA’s position that this standard requires employers to permit employees to use the facilities that correspond with their gender identity.  OSHA suggests that employers provide employees with various restroom options that employees may, but are not required to, choose.  These options could include 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.”

Copies of the EEOC Fact Sheet and the OSHA guidance can be found on the agencies’ websites.

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 Hamel is a Director in the Employment Practice Group of McLane Middleton, Professional Association. Adam can be reached at 603-628-1189 or [email protected].

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