According to the Williams Institute at the University of California–Los Angeles, some 700,000 adults (0.3 percent) in the United States are transgender (2011). “Transgender” is a term to describe people whose gender identity and/or expression is different from their sex assigned at birth. Employers may encounter transgender workers and have questions about restroom access, since workplaces commonly have separate restrooms for men and women.
Consider the following:
Although gender identity is not named as a protected status under federal law, the Equal Employment Opportunity Commission has taken the position that transgender individuals are protected under Title VII. Many states, including Colorado, have made gender identity a protected status under state law.
Colorado Civil Rights Division rules state that employees should be allowed to use the restrooms that correspond to their gender identity rather than their gender at birth without being harassed or questioned (3 CCR 708-1-81.9, revised December 15, 2014).
The Utah Antidiscrimination Act states that an employer is not prohibited “from adopting reasonable rules and policies that designate sex-specific facilities, including restrooms, shower facilities, and dressing facilities, provided that the employer’s rules and policies [regarding these facilities] afford reasonable accommodations based on gender identity to all employees” (Utah Code Ann. 34A-5-110, effective May 12, 2015).
The State of Arizona does not address transgender discrimination, but several cities, including Phoenix, Flagstaff, and Tucson have anti-discrimination laws that may.
Occupational Safety and Health Administration regulations require that all employers under its jurisdiction provide employees with sanitary and available toilet facilities.
Information about an employee’s transgender status (such as the sex they were assigned at birth) can constitute confidential medical information under privacy laws like the Health Insurance Portability and Accountability Act.
Based on the aforementioned, the following is information for employers as they manage restroom accessibility:
Employees should have access to the restroom corresponding to their gender identity.
Employers may not impose unreasonable restrictions on employee use of toilet facilities.
Transgender employees do not have to accommodate employees who do not want to share a multi-person restroom with a transgender person.
Employers may not ask about an employee’s transgender status or question the employee regarding which restroom they intend to use.
Employers may not disclose an employee’s transgender status without the employee’s consent.
Occasionally, employees may be uncomfortable sharing the restroom with a coworker who is believed to be transgender, unless the employee transitioned during their employment. The challenge for most employers is how to address such discomfort while respecting the rights of the transgender worker. Some options for employers to consider include:
Making available a unisex single-stall restroom that can be used by any employee.
Making all multiple-occupant restroom facilities gender-neutral with lockable, single-occupant stalls.
Allowing the uncomfortable employee to use a restroom in a different location than their work station.
If the options provided are not feasible or acceptable to the uncomfortable employee, please contact MSEC for guidance on how to counsel employees concerning the anti-discrimination policies and respectful workplace expectations.
For more information on this topic, please visit the Occupational Safety and Health Administration publication, A Guide to Restroom Access for Transgender Workers.