Editor’s note: This is the fourth article in a series where we’ll ask Courtney Leyes and Emily Litzinger, employment lawyers at Fisher Phillips, employment law questions specific to the restaurant industry. The first, on hiring minors, can be found here. The second, on how to accommodate pregnant and breastfeeding employees, can be found here. The third, on tip pooling, can be found here. The fourth, on improving labor relations, can be found here.

What is gender identity and why is it important? 

Gender identity is how a person views their internal gender. Gender identity can correlate with a person’s assigned sex or can differ from it. For example, a transgender man may have been assigned female at birth and raised as a female but identifies as a man. Gender identity is an intrinsic part of each person’s identity and everyday life. Accordingly, it is essential for employees to be able to work in manner consistent with how they live the rest of their daily lives based on their gender identity. 

Restricting employees to using only restrooms that are not consistent with their gender identity or segregating them from other workers singles out those employees and could result in fear for their physical safety. Bathroom restrictions also could result in your trans employees avoiding using the restroom at work which can lead to serious physical injury or illness. 

What are the legal requirements? 

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) requires that employers make toilet facilities available so employees can use them when they need to, and the employer may not impose unreasonable restrictions on use of the facilities. There are no federal, state or municipal laws that specifically pertain to gender identity requiring employers to utilize one type of bathroom over another, or to construct new facilities to accommodate transgender individuals. Some jurisdictions, however, regulate aspects of these restrooms. For instance, in Washington, D.C., public spaces including restaurants are required to have a single-occupant restroom facility to be gender neutral, a restroom designed for use by one individual at a time and may not have a specific gender designation. 

Notably, this law does not require employers to have single-occupant restrooms of another type. In Colorado, employers are required to permit their employees to use restrooms appropriate to their gender identity rather than their assigned gender at birth without being harassed or questioned.  In Iowa, Vermont and Washington, employers must permit their employees access to restrooms in accordance with their gender identity, rather than their assigned sex at birth.

What are the best practices for employers? 

Employers should allow employees to access gender-segregated facilities such as bathrooms corresponding to the gender with which they identify. Co-workers who are uncomfortable with a transgender employee’s use of the same restroom should be advised to use separate facilities. 

Bathroom access can be a challenging topic but allowing employees to use the facility that corresponds with their gender identity not only dignifies transgender or non-binary people, but it also ensure you are not in violation of OSHA regulations or local and state non-discrimination laws. 

Employers who prevent transgender or non-binary persons from using the restroom that corresponds with their gender identity and expression may be construed as sex discrimination under Title VII of the Civil Rights Act. 

What if a single-occupant facility is not possible? 

It is not always practical or possible to have a single-occupancy restroom, in those cases where multiple occupants, gender-segregated restrooms already exist, employers may enhance privacy with features such as flaps to cover the gaps in the stall doors and doors that extend from the floor to the ceiling. Most employers can create at least one such area with minimal expense to accommodate an employee’s desired additional privacy. 

What Next? Take Action.

While there is no single solution for every workplace, employers are encouraged to find solutions that are safe, convenient, and respect transgender employees. 

Once you’ve devised a plan, put it into writing in the form of a restroom policy outlining the Company’s policy and talking points for managers implementing the policy. The best policies also provide additional options which employees may choose, but are not required, to use. These include: use of a single-occupancy gender-neutral facility; and use of a multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls.

Employers should not ask employees to provide any medical or legal documentation of their gender identity or be required to use a segregated facility apart from other employees because of their gender identity or transgender status (i.e., one that is an unreasonable distance from their worksite). 

Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.

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