Bathroom Access at Work: A Confusing and Controversial Issue
If you have a workplace, that workplace probably has bathrooms. You may not have given much thought to your bathrooms, because as long as they work and they are maintained, there isn’t much to think about.
Except when you have a transgender employee, and the question becomes which bathroom can they use, and can you tell them which bathroom to use?
Regardless of your ethics, moral or political beliefs, most all can agree, you don’t want to end up getting sued for making the wrong choice, or compelling a transgender employee to use a bathroom that he or she doesn’t want to use.
Supreme Court Hasn’t Spoken Directly
Although the Supreme Court did say that employers cannot discriminate against employees on the basis of gender identity or orientation, that doesn’t necessarily answer the question of bathroom access.
Unfortunately, bathroom access for transgender employees is something that every state deals with differently, and there is no one federal law to give guidance to employers.
The EEOC’s Opinion
The Equal Employment Opportunity Commission (EEOC), in interpreting The Civil Rights Act of 1964, has said that it is discrimination to prohibit an employee from using a bathroom that corresponds with his or her gender identity (that is, to compel a transgender employee to sue a bathroom that corresponds to the employee’s birth sex). However, there is no specific Florida law that speaks to the topic. Additionally, the Civil Rights Act does not apply to employers with less than 15 employees.
EEOC opinions aren’t law, and aren’t binding—however, federal courts do give them some deference, in cases where there is no governing federal laws.
Note that all of this has to do with private businesses. In Florida, there is a law that applies to public buildings, like schools or government buildings. That law does make it illegal for someone to use a bathroom other than what their biological sex is (the law is currently being challenged in court).
Different States, Different Rules
But that doesn’t give much guidance to private employers. And nationally, there have been a mix of opinions.
North Carolina made it illegal for any person who is transgender, to use a bathroom that doesn’t correspond with his or her sex.
However, a federal court in Illinois recently upheld a verdict against Hobby Lobby, when it tried to prohibit a non-biological female employee from using the women’s restroom.
It is likely that requiring a transgender employee to use one restroom or the other, could lead to litigation. And asking someone to provide “proof” of their biological gender, or of any types of reassignment or other medical procedure, can also lead to legal troubles.
Until something changes, you should assume that the EEOC’s current guidance for private employers is the government law, and following EEOC guidelines is the best way to avoid challenges and lawsuits.
Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993 today for help with your legal questions or problems.