Assigning Bathrooms – Reasonable Accommodation?
By Ruder Ware Alumni
May 11, 2016
There has been a great deal of media coverage regarding how to accommodate a transgender employees’ use of bathrooms. Logic suggests that maintaining private bathrooms that would be available to any employee would be the most reasonable way to address this situation in the workplace.
A 2015 decision in a case brought by the Equal Employment Opportunity Commission unfortunately held that providing a private bathroom was not a reasonable accommodation to protect the interests of a transgender employee. The theory behind the decision was that the transgender employee should be afforded access to the available bathroom for the gender that the employee identifies with and a restriction to using a private bathroom was an unreasonable restriction for the self-identified transgender employee. Transgender employees must have the same access to restrooms as any other employee in the workplace.
This seems like an overly broad reading of the applicable federal and state laws that prohibit discrimination against an individual based upon sex or sexual orientation. The law and decisions in this area are undergoing a great deal of review at this time, so it is hard to predict what would be the most appropriate way to address transgender employees and access to bathrooms.
The best alternative for an employer, at this time, is to not impose any limitations on access and react only if complaints arise from others in the workplace. If a complaint is brought by other employees objecting to the transgender employee’s use of the designated restroom, the company may be obligated to address the situation – but until that occurs, it is most appropriate to remain silent on the topic.
Ruder Ware attorneys will monitor the pending litigation and provide further advice when things become clearer.
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