We have a female employee who is in the process of transitioning to become male, and who is requesting utilization of the male multi-stall restrooms. How do we go about respecting his wishes and also respecting the other employees/customers who will be utilizing the same facilities? What's the correct way to address the request without infringing on the employee’s rights?
Our recommendation in this situation is to treat a transgender employee no differently than any other employee relative to restroom access. In this regard, the employer should allow such employees to use the restroom that comports with their full-time gender presentation or identity, regardless of biologic or physical attributes, as we trust this is the standard used for all employees.
To our knowledge no federal law nor law in your particular state creates an obligation to provide transgender employees with a special bathroom because of their transgender status, and generally we would discourage an employer from singling out, or discriminating against, such employees in this way. We also do not recommend that the employer use other employees' or customers' discomfort as a reason to treat differently the subject employee (or any other) by requiring that he use a restroom that does not comport with his full-time gender presentation, as you indicate he is a transgender male. In addition to creating employee relations issues, this could also result in a discrimination claim.
Ultimately, if the subject employee presents and/or identifies as male, and absent a credible and legitimate threat to safety (in which case, the employer should take appropriate measures to protect its entire workplace -- not just its restrooms), he should be permitted to use the men’s restroom, and this is true even if other employees or customers prefer or believe differently. The federal EEOC supports this position as well, see the EEOC's “Bathroom/Facility Access and Transgender Employees” for more information.
Want to know more? Listen to our podcast on the use of the WH-382 Designation Notice.
Published Date:February 18, 2020
Categories: HR Question of the Month