Bathroom Fairness

Transgender workers have been in the news frequently recently over the public debate about which restroom they should use. In some cases, employers try to create a policy in which a transgender worker must use one bathroom over another, regardless of preference, or use a single-occupancy bathroom. Sometimes coworkers express concern over a transgender employee using the restroom of their sex, or they may harass a transgender employee for using a particular bathroom. This type of unfair situation can arise before or after transitioning. At Wiley Walsh, P.C., our Austin sexual orientation discrimination lawyers believe in bathroom fairness for transgender employees.

The law on the issue of bathroom fairness in workplaces is not clear yet. Several city ordinances in Texas prohibit gender identity discrimination, but they provide civil rights rather than allowing an employee a private cause of action against an employer. To bring a claim on the issue of bathroom fairness, you need to rely on either Title VII of the Civil Rights Act of 1964 or Texas Labor Code Chapter 21.

There is no explicit protection for transgender, gay, or lesbian employees in Title VII. Historically, LGBTQ employees have sought protection under Title VII based on arguments related to sexual stereotypes. However, in more recent years, the Equal Employment Opportunity Commission (EEOC) has concluded that sexual orientation and gender identity discrimination are subsets of sex discrimination, which is explicitly prohibited.

In one case, the EEOC issued a ruling in favor of a transgender civilian employee of the army who was transitioning from male to female. She was restricted to using a single-user restroom until she became a woman anatomically. The EEOC concluded that this policy involved disparate treatment based on sex in violation of Title VII. The EEOC also found that coworker anxiety about her restroom use did not justify limiting her rights and that allowing coworkers to decide whether sex discrimination was valid would reinforce the prejudice that Title VII was designed to overcome.

Previously, the federal Occupational Safety and Health Administration (OSHA) published guidance on best practices for providing restroom access to a transgender worker. It found that all employees should be permitted to use the restroom facilities that correspond with their gender identity. In other words, under the OSHA guidelines, it does not matter which sex you were assigned at birth. You should be able to use the facilities that correspond to the gender with which you identify.

Currently, the federal courts do not agree about how to analyze cases involving transgender worker discrimination, such as the bathroom fairness issue. Most likely, further litigation up to the U.S. Supreme Court or federal anti-discrimination legislation will be needed to clarify and determine the issue of bathroom fairness.

Texas state law is similarly unclear on the issue of bathroom fairness. However, the Texas cities of Austin, Dallas, Fort Worth, and Plano explicitly prohibit employment discrimination based on gender identity or sexual orientation, which means that about 13% of the state's workforce is covered by an ordinance. These ordinances usually apply to employers with at least 15 employees, and they designate a city entity or person to enforce the pertinent anti-discrimination provisions. Ten other localities have anti-discrimination policies prohibiting discrimination based on gender identity or sexual orientation against local government employees.

Often, the issue of bathroom fairness is not the only issue that a transgender person faces in the workplace. Often, there is other discrimination, such as being passed over for promotions, being assigned to less prestigious work, or being subjected to harassment. If you are a transgender employee concerned about bathroom fairness in your workplace, you may have options. This is a complex and evolving area of law, and it is important to retain knowledgeable and experienced Austin lawyers to protect your rights. Wiley Walsh, P.C. represents people in cities such as Georgetown, Round Rock, Cedar Park, Pflugerville, Leander, Del Valle, Kyle, San Marcos, San Antonio, New Braunfels, and Fredericksburg. Call us at (512) 271-5527 or use our online form to set up an appointment with an employment discrimination lawyer.