Written By: Jennifer Doherty, Inspiring HR

Who uses which bathroom?  How many bathrooms  must the company provide and can we dictate who uses which?

Although the transgendered are a small percentage of the population, as a group they are more open about their status than ever before. Proactive employers will have a plan in place for protecting and supporting all their employees, including those with gender identity considerations.

Restroom access is a much-discussed piece of this process. The dust has finally settled on North Carolina’s “Bathroom Bill”, a law that had required individuals to use the restroom corresponding to the gender named on their birth certificates, but other states are wading into these same unsettled waters. Employers are left wondering where the issue stands now.

What is Gender Identity?

Gender identity is a person’s internal sense of being male or female, some combination of the two, or neither male or female.

Gender identity is a deeply personal and internal understanding. It is not a medical condition. Because of this, employers cannot require employees to provide medical verification of their transgendered status.

Gender Identity in the Courts

Currently, court decisions are split on whether Title VII non-discrimination legal protections apply to sexual orientation or gender identity, however the Equal Employment Opportunity Commission (EEOC) takes the position that Title VII does protect these populations. This issue seems destined for the Supreme Court of the United States, but until that time the safest legal route for any employer affected by Title VII is to proceed with the assumption that these protections do apply to both sexual orientation and gender identity.

At the start of the Trump presidency, some employers wondered if new executive policies would clarify the issues; however, consensus is that they will not. As with paid time off benefits, it may well be an issue that is regulated at the state level, at least until broader federal guidance is ultimately provided through the courts. It’s strongly advised that small businesses remain cognizant of all local regulations impacting their employment policies.

There is, however, one federal regulation that’s very clear.  The Occupational Health and Safety Agency (OSHA) requires employers of any size to provide bathroom facilities to all their employees.

We’ve landed back at the beginning – so, which bathroom?

What is Required?

Let’s start with what’s required, because it’s likely more nuanced than you think.

Employers with 15 or fewer employees are required to provide one, single-use, locking restroom available for use by all employees. Simple enough, right? But from here, the law gets more complicated:

• Two toilets for 16 to 35 employees
• Three toilets for 36 to 55 employees
• Four toilets for 56 to 80 employees
• Five toilets for 81 to 110 employees
• Six toilets for 111 to 150 employees
• One additional toilet for every 40 employees over 150. For example, a company with 400 employees would need to provide 13 toilets

Further, OSHA also determines the allocation of these facilities. For decades, the law required any employer with more than 15 employees to provide gender-segregated facilities for men and women, and that these facilities must be specifically designated for male orfemale use.

Thankfully, OSHA recently updated their requirements to accommodate a diverse workplace. They allow (and even encourage) two additional options to the traditional male/female segregated bathroom. In full compliance with OHSA regulations, employers may:

• designate additional single-occupancy bathrooms as gender-neutral for use by all their employees, or
• install multi-occupant, gender-neutral restroom facilities with lockable single occupant stalls. (Anyone remember Ally McBeal?)

There is an important legal component to these modern alternatives: transgender employees cannot be required to utilize a single-use restroom or a multi-occupant, gender-neutral restroom when gender-identified restrooms are available for other employees.

Put another way, the legally valid solution is never to create one option for a transgender employee that requires them to behave differently than anyone else.

Your Transgender Employees Want to Help Advance Your Culture

For many people, it’s not easy to admit what they don’t know. But this simply isn’t an area where it’s okay to guess. Your transgender employee is as eager as you are (and possibly more so) to help this process run smoothly. So, start a healthy dialogue about ways to move forward:

• Explain that you understand the legal protections provided to them under the law
• Share any company policies that may apply to their situation (diversity, inclusivity, anti-harassment, and retaliation) and the appropriate reporting procedures
• Ask the employee for their preferred pronoun and how open they want to be about their status
• To every extent possible, respect and follow the employee’s preferences
• Ask them about specific concerns and worries; this may well include restroom concerns, but will likely include others you wouldn’t have considered

Some workplace issues impacting transgender employees, particularly ones that come with limited or contradictory legal guidance, can be as much about company culture as employment law. Even when the law is clear, it’s worth considering whether your company culture is to do the bare, legal minimum for your employees or, perhaps, embrace a culture of inclusivity by doing a bit more.

Educating Employees: What’s in Your Handbook?

A person’s gender identity may not match the gender specified on their birth certificate or their physical appearance and mannerisms. It’s understandable that this dichotomy can create some confusion, and even some initial discomfort, among their workplace colleagues.

The key is to stay ahead of these issues, rather than trying to play catch-up with people’s feelings later.

An employee handbook is an incredibly helpful tool in communicating company policies and culture on issues such as:

• diversity and inclusivity
• respectful treatment
• conflict resolution
• discrimination and harassment prevention
• retaliation

As with the transgender employee themselves, establishing open communication with your entire employee population is the best way to avoid unnecessary conflict. A diversity of opinions and lifestyles should be expected, but respectful behavior must be required in the workplace.

For small companies with questions about accommodating transgender employees, the HR guidance mirrors that of so many other workplace issues: educate, communicate, and do it all in compliance with the law and with respect for the employee.

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