Transgender Employees' Access to Restrooms in the Workplace

Under Title VII The Definition of 'Sex' Includes An Employee's Gender

Title VII and the FEHA prohibit sex discrimination in employment. See 42 U.S.C. ' 2000e-2(a)-(d) (title VII); Gov. Code ' 12940(a)-(d), (j) (FEHA). As used in Title VII and the FEHA, “sex discrimination” is not limited to the discrimination based on an employee's biological sex. Instead, the term “sex” encompasses both sex, meaning the biological differences between men and women, and gender, meaning a person's gender-related appearance and behavior regardless of assigned sex at birth. See Shwenck v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (superseded by statute on other grounds); Gov. Code ' 12926(r)(2).

The United States Supreme Court has ruled that when an employer discriminates against an employee based on the employee's failure to conform to the gender stereotypes of the employee's sex, this constitutes actionable discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989). This was confirmed and analyzed in a 2012 decision by the Equal Employment Opportunity Commission (EEOC) in Macy v. Dept. of Justice.

In that case, the EEOC ruled that a claim for discrimination based on gender transitioning, change of sex, and sex discrimination based on gender identity constituted a cognizable claim under Title VII. Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

In Macy, Mia Macy, the complainant, while still presenting as a man, applied for a position with the Bureau of Alcohol, Firearms, and Explosives (the Agency). Macy was offered the position pending completion of a background check. Shortly after, Macy informed the outside contractor responsible for filling the position that she was transitioning from male to female. A few days later, Macy was informed that the position was no longer available, but later learned that in fact another person had been hired. The complainant then filed a formal EEO complaint with the Agency. The Agency initially found that a claim for “gender” could not be adjudicated through Title VII. Macy appealed to the EEOC. Id.

On appeal, the EEOC determined that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex and a violation of Title VII. The EEOC found that “[i]f Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa.” Id. at 6. The statute's protections, “sweep far broader than that, in part because the term 'gender' encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.” Id. at 7.

Equal Access to Restrooms Is a Significant Basic Condition of Employment

Restricting access to transgender employees constitutes sex discrimination. Lusardi v. U.S. Dept. of the Army addressed the issue of sex discrimination against transgender employees in relation to employee access to restroom facilities. Employers with transgender employees, or employees who are transitioning from one gender to another, must be cognizant of the rights afforded to their employees in relation to the employee's access to restrooms and locker facilities, especially in light of Lusardi.

First, federal regulations require employers to provide restroom facilities for their employees. C.F.R. ' 1910.141(c)(1). Equal access to restrooms is a significant, basic condition of employment. Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 (April 1, 2015); see, e.g., OSHA, Interpretation of 20 C.F.R. 1910.141. ' (c)(1)(i): Toilet Facilities (April 4, 1998). Restricting access to restrooms may be grounds for a sex discrimination claim. See id.

In Lusardi, the EEOC recently ruled that a transgender employee was subjected to disparate treatment and harassment based on sex when the employer restricted the employee from using the common female restroom. Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 (April 1, 2015). The term “transgender” as defined by the EEOC refers to “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” Id. at p. 7.

Expanding on the analysis in Macy, the EEOC in Lusardi addressed whether denial of an employee's access to restroom facilities of a certain gender presents a sex discrimination claim under Title VII. In Lusardi , the complainant employee was a transgender woman and had discussed transitioning with her employer. The two implemented a plan whereby the employee would use a single user restroom rather than the multi-user common female restroom until the employee underwent an undefined surgery. On three occasions the employee was unable to access the single-user restroom and used the common female restroom. On these occasions she was told she was making other employees uncomfortable and that she had to use the single-user restroom until she could show proof of having the surgery. Id.

In finding for the employee, the EEOC stated that Title VII does not make any medical procedure a prerequisite for equal opportunity (for transgender individuals or otherwise). An employer cannot condition access to facilities, or other terms, conditions or privileges of employment, on the completion of medical steps unilaterally determined by the employer to “somehow provide the bona fides of an individual's gender identity.” Further, “where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the [employer] must allow her access to the women's restrooms.” Id. at p. 9. By restricting her access to the women's restrooms, the employer changed the terms and conditions of employment solely based on the employee's sex, and deprived her of equal status, respect, and dignity in the workplace, and thus violated Title VII. Id. at p. 13.

Impact for Employers

Going forward, employers should be aware of the rights provided to transgender employees with regard to restroom access. Although the employers in Macy and Lusardi were federal agencies, the Title VII provision applicable to federal employees is analogous to the section of Title VII governing discrimination in the private sector and was specifically noted by the EEOC in Lusardi . Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 at p. 7 (April 1, 2015). Accordingly, all employers should take steps to ensure they are providing all employees unrestricted access and use of restroom facilities.

In implementing this policy, it may be that other employees express confusion or anxiety related to a transgender employee's access to common restrooms. However, this does not justify discriminatory terms and conditions of employment and the employer cannot prohibit a transgender employee's use of common restroom facilities on this basis. Id. at p. 11.

To address this situation, an employer has a few options. First, the employer should publicize and promote a policy of non-harassment and non-discrimination on all bases, including sex and gender. An employer can also provide all employees with access to single-user or unisex restrooms (where available) to be used at each employee's discretion, or take steps to increase the privacy of any common restrooms such as providing for floor length stall doors or privacy dividers between urinals.

Further, employers may work with transgender employees to develop plans for individual workplace transitions. These plans, however, cannot be used as a means for restricting a transitioning employee. See id ., at p. 10. Instead, the plans should be a method for the employer and employee to work together to enable the employee to complete his or her transition in an open and welcoming way in the workplace.

Amber Morton is an attorney with Carico Johnson Toomey LLP, a law firm that defends employers against labor and employment-related claims. Reach her at [email protected] or 310-545-0010.

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Employers with transgender employees should be aware of recent developments in the interpretation of laws for transgender employees, especially in relation to an employee's access to restroom facilities while at work. Title VII and the Fair Employment and Housing Act (FEHA) provide protections for transgender employees in the workplace. As discussed in more detail below, employers are required to grant unrestricted restroom access and use according to an employee's full-time gender presentation. The following provides a brief explanation of the law and the steps an employer can take to ensure that all employees remain comfortable in using restroom facilities.

Who Is an 'Employer' for Purposes of Title VII And the FEHA?

Title VII defines an “employer” as any person engaged in industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. 42 USC '2000e(b). The FEHA has a broader scope and defines an “employer” as any person regularly employing five or more persons or any person acting as an agent of an employer, directly or indirectly, the state, any political or civil subdivision of the state, and cities. Gov. Code ' 12926(d), 12940(j)(4)(A).

Under Title VII The Definition of 'Sex' Includes An Employee's Gender

Title VII and the FEHA prohibit sex discrimination in employment. See 42 U.S.C. ' 2000e-2(a)-(d) (title VII); Gov. Code ' 12940(a)-(d), (j) (FEHA). As used in Title VII and the FEHA, “sex discrimination” is not limited to the discrimination based on an employee's biological sex. Instead, the term “sex” encompasses both sex, meaning the biological differences between men and women, and gender, meaning a person's gender-related appearance and behavior regardless of assigned sex at birth. See Shwenck v. Hartford , 204 F.3d 1187, 1202 (9th Cir. 2000); Price Waterhouse v. Hopkins , 490 U.S. 228, 250 (1989) (superseded by statute on other grounds); Gov. Code ' 12926(r)(2).

The United States Supreme Court has ruled that when an employer discriminates against an employee based on the employee's failure to conform to the gender stereotypes of the employee's sex, this constitutes actionable discrimination. Price Waterhouse v. Hopkins , 490 U.S. 228, 250 (1989). This was confirmed and analyzed in a 2012 decision by the Equal Employment Opportunity Commission (EEOC) in Macy v. Dept. of Justice.

In that case, the EEOC ruled that a claim for discrimination based on gender transitioning, change of sex, and sex discrimination based on gender identity constituted a cognizable claim under Title VII. Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

In Macy, Mia Macy, the complainant, while still presenting as a man, applied for a position with the Bureau of Alcohol, Firearms, and Explosives (the Agency). Macy was offered the position pending completion of a background check. Shortly after, Macy informed the outside contractor responsible for filling the position that she was transitioning from male to female. A few days later, Macy was informed that the position was no longer available, but later learned that in fact another person had been hired. The complainant then filed a formal EEO complaint with the Agency. The Agency initially found that a claim for “gender” could not be adjudicated through Title VII. Macy appealed to the EEOC. Id.

On appeal, the EEOC determined that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex and a violation of Title VII. The EEOC found that “[i]f Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa.” Id. at 6. The statute's protections, “sweep far broader than that, in part because the term 'gender' encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.” Id. at 7.

Equal Access to Restrooms Is a Significant Basic Condition of Employment

Restricting access to transgender employees constitutes sex discrimination. Lusardi v. U.S. Dept. of the Army addressed the issue of sex discrimination against transgender employees in relation to employee access to restroom facilities. Employers with transgender employees, or employees who are transitioning from one gender to another, must be cognizant of the rights afforded to their employees in relation to the employee's access to restrooms and locker facilities, especially in light of Lusardi.

First, federal regulations require employers to provide restroom facilities for their employees. C.F.R. ' 1910.141(c)(1). Equal access to restrooms is a significant, basic condition of employment. Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 (April 1, 2015); see, e.g., OSHA, Interpretation of 20 C.F.R. 1910.141. ' (c)(1)(i): Toilet Facilities (April 4, 1998). Restricting access to restrooms may be grounds for a sex discrimination claim. See id.

In Lusardi, the EEOC recently ruled that a transgender employee was subjected to disparate treatment and harassment based on sex when the employer restricted the employee from using the common female restroom. Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 (April 1, 2015). The term “transgender” as defined by the EEOC refers to “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” Id. at p. 7.

Expanding on the analysis in Macy, the EEOC in Lusardi addressed whether denial of an employee's access to restroom facilities of a certain gender presents a sex discrimination claim under Title VII. In Lusardi , the complainant employee was a transgender woman and had discussed transitioning with her employer. The two implemented a plan whereby the employee would use a single user restroom rather than the multi-user common female restroom until the employee underwent an undefined surgery. On three occasions the employee was unable to access the single-user restroom and used the common female restroom. On these occasions she was told she was making other employees uncomfortable and that she had to use the single-user restroom until she could show proof of having the surgery. Id.

In finding for the employee, the EEOC stated that Title VII does not make any medical procedure a prerequisite for equal opportunity (for transgender individuals or otherwise). An employer cannot condition access to facilities, or other terms, conditions or privileges of employment, on the completion of medical steps unilaterally determined by the employer to “somehow provide the bona fides of an individual's gender identity.” Further, “where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the [employer] must allow her access to the women's restrooms.” Id. at p. 9. By restricting her access to the women's restrooms, the employer changed the terms and conditions of employment solely based on the employee's sex, and deprived her of equal status, respect, and dignity in the workplace, and thus violated Title VII. Id. at p. 13.

Impact for Employers

Going forward, employers should be aware of the rights provided to transgender employees with regard to restroom access. Although the employers in Macy and Lusardi were federal agencies, the Title VII provision applicable to federal employees is analogous to the section of Title VII governing discrimination in the private sector and was specifically noted by the EEOC in Lusardi . Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 at p. 7 (April 1, 2015). Accordingly, all employers should take steps to ensure they are providing all employees unrestricted access and use of restroom facilities.

In implementing this policy, it may be that other employees express confusion or anxiety related to a transgender employee's access to common restrooms. However, this does not justify discriminatory terms and conditions of employment and the employer cannot prohibit a transgender employee's use of common restroom facilities on this basis. Id. at p. 11.

To address this situation, an employer has a few options. First, the employer should publicize and promote a policy of non-harassment and non-discrimination on all bases, including sex and gender. An employer can also provide all employees with access to single-user or unisex restrooms (where available) to be used at each employee's discretion, or take steps to increase the privacy of any common restrooms such as providing for floor length stall doors or privacy dividers between urinals.

Further, employers may work with transgender employees to develop plans for individual workplace transitions. These plans, however, cannot be used as a means for restricting a transitioning employee. See id ., at p. 10. Instead, the plans should be a method for the employer and employee to work together to enable the employee to complete his or her transition in an open and welcoming way in the workplace.

Amber Morton is an attorney with Carico Johnson Toomey LLP, a law firm that defends employers against labor and employment-related claims. Reach her at [email protected] or 310-545-0010.

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