Article Summary

The Supreme Court has postponed its consideration of one aspect of the transgender bathroom issue, but smart employers won't bother waiting for definitive declarations. Even though the law in this area is still developing, the U.S. Department of Labor has issued workplace guidelines that are easy to follow — and that should be uncontroversial for most employers. By implementing these best practices now, companies can get ahead of the curve.

This article by TELG principal Michael Vogelsang was published by The Employment Law Group, P.C. on March 9, 2017.

In Private Sector, Transgender Bathroom Policy Is an Easy Call

By Michael L. Vogelsang, Jr.

Now that the U.S. Supreme Court has declined to resolve a bellwether case on bathroom access for transgender students, many employers are forging ahead with their own rules on transgender bathroom access in the workplace.

The good news: Although this is a fluid area of law — especially for the public sector, the main target of “bathroom bills” in states such as Texas and North Carolina — most companies can (and should) cover their legal bases with a few common-sense steps.

First, a quick summary of where the law stands.

Title VII of the Civil Rights Act of 1964 forbids workplace discrimination on the basis of sex — a ban that, according to courts and the U.S. Equal Employment Opportunity Commission (EEOC), extends to discrimination based on gender identity. In 2015, relying on this legal interpretation, the U.S. Department of Labor (DOL) issued a guide to restroom “best practices” for employers.

The DOL’s model practices aren’t binding, and they could be revisited under President Trump. However, the new administration hasn’t indicated a plan to do so, and it can’t change the underlying legal precedents anyhow.

Beyond the baseline set by federal law, some states offer more explicit protections for transgender employees, and President Trump recently confirmed that he’ll continue to protect transgender employees who work for the federal government and its contractors. Under all these legal regimes, employers who follow the DOL’s recommendations should be fine.

The DOL’s guidance offers a simple bottom line: “[A] person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.”

For most employers, this rule is easy to implement. For example, many small businesses have a single, lockable, non-sex-specific bathroom that is used by every employee. Such a situation presents no legal problems and requires no change.

Workplaces with two or more bathrooms, at least some of which are divided by sex, face a choice. If each bathroom is single-occupancy, the easiest solution is to remove all male/female designations. Otherwise, the employer should make clear — ideally via an update to its policy manual, or similar official statement — that bathroom use is governed by gender identity, not by biological sex at birth.

What if some non-transgender (cisgender) employees are uncomfortable with such a policy, or if employers just believe they might be uncomfortable? Under the DOL guidelines, it is the discomfited employees who should be pointed quietly toward another bathroom option, if one is available — not transgender employees, who cannot be asked to act differently because of their gender identity.

For small businesses, a good option for uncomfortable employees might be a nearby bathroom in a public part of the building. For larger companies, it might be one or more single-occupancy bathrooms — ADA-compliant restrooms often fit the bill.

Employees who don’t like sharing bathrooms with their transgender colleagues shouldn’t be allowed to complain publicly or to create a hostile environment. Nonetheless, smart employers will offer a safe channel for bathroom policy grievances: Workers should be allowed to vent their feelings to human resources, for instance, with no fear of reprisal.

Meanwhile, companies that decide to enforce bathroom access based on biological sex, or that pay lip service to DOL guidelines but tolerate a hostile environment, risk legal action by their transgender employees. In cities or states with strong local bathroom regulations, such as Washington, D.C., the employees will almost certainly win.

Federal courts are more of a toss-up right now, depending on the jurisdiction and the reason an employer offers for its discrimination. The high-profile Gavin Grimm (or “G.G.”) case may yet result in a landmark Supreme Court opinion, even though it’s been remanded to a lower court for now. Gloucester County School Board v. G.G. concerns students, not workers, but any decision on the core issue of the legal definition of “sex” would extend easily to employment law.

The Trump administration will play a part, too. It influenced the G.G. case by withdrawing some transgender-friendly guidance on which the lower court had relied. It didn’t repudiate the underlying position, however: It just cited a need “to further and more completely consider the legal issues involved.”

On the employment side, meanwhile, there’s no sign that President Donald Trump has a problem with the Obama-era positions of the EEOC and the DOL. If anything, he has indicated support via his embrace of continued protections for transgender employees of the federal government and its contractors.

Facing this landscape, it’s hard to imagine why any employer would risk an extreme position on bathroom access — or even bother waiting for the Supreme Court to weigh in. The DOL’s best practices are easy to follow and offer a fair solution for every employee.

Michael L. Vogelsang, Jr. is an associate attorney with The Employment Law Group, P.C.