The monumental attention paid to the transition of Bruce Jenner to Caitlyn Jenner has made a long-simmering issue a hot topic in human resource seminars:
What workplace restroom should Caitlyn use?
It isn’t necessary to go into physical details about where her — or anyone’s — transition stands. The general advice is to allow transgender people to use restrooms that correspond to their gender identity.
The federal Occupational Safety and Health Administration this summer issued workplace guidance on that point: “A person who identifies as a man should be permitted to use the men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.”
Some states, including Colorado, Iowa, Washington, Vermont and Delaware, along with the District of Columbia, have passed specific legislation concerning transgender individual’s restroom rights. Other states may follow, or the federal government may enact overarching rules.
Just three days after OSHA issued its workplace restroom guidance it filed a sex discrimination lawsuit against a Minnesota employer that allegedly denied a transgender employee access to a women’s restroom. The EEOC also recently settled a case in which the employer allegedly fired a transgender employee because of an identity change.
Human resource officers acknowledge a sensitive balancing act in accommodating transgender restroom preferences: Many employees are just plain uncomfortable about it. It can be a powerful morale issue that may even affect employee recruitment and retention.
One solution to help accommodate all sides is for workplaces to have at least one single-occupancy bathroom that is considered unisex. Anyone can use the facility in complete privacy. And it shouldn’t be marked for transgender use solely.
But if a private unisex stall isn’t possible, the guidelines remain: Transgender employees should be allowed to use the facilities for the gender with which they identify.
Writing in the Arizona Employment Law Letter, attorney Kylie Crawford TenBrook recently advised workplaces with “don’ts” on the bathroom issue. Among them, she said, employers shouldn’t “require medical or legal documentation to substantiate an employee’s use of a certain restroom.”
And, TenBrook wrote, employers shouldn’t “allow third parties’ preferences to guide your decision on gender identity issues. As with discrimination on any basis, employees’ and customers’ stereotypes are not legitimate reasons to discriminate against anyone.”
That acknowledges, of course, that preferences can be strong. But many social acceptances change over time. This July, for example, U.S. Department of Defense Secretary Ash Carter said in a memo that a plan was in the works to lift an “outdated” ban on military service by transgender individuals “that’s contrary to our value of service and individual merit.”