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Thursday, May 12, 2016

Bathroom Wars Begin

By: Thomas Eden

Bathroom Bills have created a civil war between the federal and states over preventing transgender individuals from using public bathrooms that correspond to their gender identity or outward gender expression. On May 4, 2016, the Justice Department sent a formal letter to North Carolina Gov. McCrory, summarizing its position on North Carolina’s Bathroom Bill and urging public officials to abandon the bill because it violated Title VII of the Civil Rights Act of 1964 (“Title VII”). On Monday, May 9, 2016, both the U.S. Department of Justice and North Carolina filed dueling federal lawsuits over the legality of the state’s Bathroom Bill

This bathroom war has a direct impact on employers and practices of bathroom access for transgender employees. The Equal Employment Opportunity Commission (EEOC’s) interpretation of the breadth of Title VII’s prohibition on transgender sex discrimination in the bathroom wars is clear:

1.   Employers cannot require transgender employees to provide proof of surgery or gender reassignment before the employees are permitted to use the bathroom corresponding with their gender identity or expression.

2.   If common bathrooms are available (i.e., gender-specific restrooms with multiple stalls or urinals) for non-transgender employees, employers cannot relegate transgender employees to use only a single-user bathroom in lieu of using the common bathroom.

3.   Employers can make single-user bathrooms available for all employees and employees (including transgender employees) may choose to use the single-user bathroom.

4.  The sentiments, beliefs, confusion, comfort-level and/or anxiety of other employees is not a defense to discrimination nor does it excuse an employer from the obligation of permitting transgender employees access to a common bathroom that corresponds with their gender identity or expression.

Likewise the Occupational Safety and Health Administration (OHSA) in 2015 issued its “Model Practices for Restroom Access for Transgender Employees” as follows:

Many companies have implemented written policies to ensure that all employees—including transgender employees—have prompt access to appropriate sanitary facilities. The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.

The employee should determine the most appropriate and safest option for him- or herself.

The best policies also provide additional options, which employees may choose, but are not required, to use. These include:

•    Single-occupancy gender-neutral (unisex) facilities; and
•    Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.

Common Sense Counsel: until one side can declare clear victory in the bathroom wars, for now the United States Regulatory forces clearly own the bigger flusher and “resistance is futile” in the words a Borg possessed Captain Jean Luc Picard.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901 with blog at with link to litigation and guidance.