The question is not so simple anymore.
According to the UCLA School of Law’s Williams Institute, there are approximately 700,000 transgender individuals in the United States.
In a recent Equal Employment Opportunity Commission ruling (Lusardi v. McHugh, EEOC, No. 0120133395, 4/1/15), the US government ruled that a government employee who transitioned from male to female could not be forced to use a unisex bathroom. Instead she had the right to use the woman’s bathroom.
The Equal Employment Opportunity Commission (EEOC) noted it will rely on this ruling when investigating similar charges in the private workplace. The EEOC message is that transgender employees (not the employers) pick the bathroom s/he identifies with. This is true even if other employees complain.
The other message EEOC is signaling is that while providing a unisex bathroom is reasonable, mandating its use is forbidden. The EEOC noted that directing transgender employees to a specific bathroom is a form of illegal segregation – akin to race-segregated bathrooms decades ago.
The conundrum is more challenging given that many transgender people are either choosing to avoid going through full gender reassignment surgery – or they are in the middle of transitioning.
While the EEOC has made its position clear, the matter is probably not fully settled. Still, if an employer wants to avoid litigation, they should not deny a transgender employee the bathroom of his or her choice until the legal complexities are settled. That likely will be years down the road.
In the Lisardi case, the complaints of female co-workers prompted the federal employer to mandate use of a unisex bathroom. That’s when the matter escalated into a discrimination case.
Managing the expectations of a transgender employee versus those of co-workers is an interesting balancing act. The expectation of privacy in the bathroom is well established in society and law. No court would claim that an employer did not have the right to segregate its bathrooms between men and women, even after Lusardi.
Still, if an employer wants to propel a middle-of-the road policy, this might strike a balance: employees who have not or are not fully transitioned must temporarily use the unisex bathroom as a reasonable accommodation. This argument is more persuasive than stating all transgender employees must use the unisex bathroom.
Such an argument could be strengthened by statistics which suggest that employees who have not fully transitioned are at high risk for physical or sexual assault; and harassment and bullying. Of course, if you’re making a statistical argument, you are probably in the middle of litigation.
One important point to remember. The EEOC doesn’t necessarily target the smallest of businesses. It addresses private business employee-related complaints as described on its web site:
If a complaint against a business (or some other private employer) involves race, color, religion, sex (including pregnancy), national origin, disability or genetic information, the business is covered by the laws we enforce if it has 15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last).
Final thought. Here’s another option. If you building out a bathroom, just create a collection of single person bathrooms. The multiple unisex bathroom option. The Ally McBeal option. Remember that? What do you think?