On Thursday March 30, 2017, Gov. Roy Cooper signed House Bill 142, which repealed North Carolina’s controversial House Bill 2. As previously reported by HR Legalist, House Bill 2 was signed into law on March 23, 2016, and prohibited local government from permitting transgender individuals to use public bathrooms that aligned with their sex or gender identity. House Bill 142 came to pass after the NBA, NCAA, Paypal, and Deutsche Bank all cancelled previously scheduled events or plans for expansion within North Carolina due to House Bill 2. It has been estimated that House Bill 2 cost North Carolina at least $450 million dollars in lost revenue. Now, however, many civil rights advocates are criticizing the new bill due to a provision that prevents local governments from passing any nondiscrimination statutes until December 2020.
North Carolina is not the only state that has seen increasing clashes over regulations that impact transgender access to restrooms in the workplace. Texas’s Senate Bill 6 (now pending before the State Senate), would similarly require Texans to use the restroom that matches the sex on the individuals’ birth certificate in all government-funded buildings. Mirroring the new North Carolina Bill, Senate Bill 6 would additionally require the state to overrule any local anti-discrimination laws that permit residents to use bathrooms that correspond to the user’s gender identity. Other states, including, but not limited to, Kansas, Kentucky, Minnesota, Missouri, and New York have also proposed legislation limiting transgender individuals’ access to bathrooms.
As for the federal government, the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) positions on transgender bathroom access are clear: all employees should have access to restrooms that correspond to their gender identity. OSHA released guidance on best practices and restroom access to transgender workers, which advises:
- The employee should determine the most appropriate option for him- or herself.
- Employers must find solutions that are safe, convenient and respect transgender employees, including, but not limited to:
- Single-occupancy gender-neutral (unisex) facilities; and
- The use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls
- Employees do not have to provide any legal documentation of their gender identity in order to have access to gender-appropriate facilities.
- LGBT employees should not be segregated to any particular facility apart from other employees because of their gender identity or transgender status.
- Employees should not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.
Similarly, it is the EEOC’s position that:
- Denying an employee equal access to a common bathroom corresponding to the employee’s gender identity is discrimination on the basis of sex.
- An employer cannot require an employee to provide proof of surgery or any medical procedure to access the restroom that matches his or her gender identity.
- An employer cannot avoid the requirement to provide equal access to common restroom facilities by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).
Some states, including New Jersey and Delaware, have already enacted laws to enforce such sentiments statewide. To ensure compliance with state and federal civil rights laws, employers should contact their employment law counsel and review OSHA and EEOC guidance. HR Legalist will continue to monitor and report on changes to bathroom regulations as they arise.
Lisa Koblin is an attorney in Obermayer’s Labor Relations and Employment Law Department who focuses her practice on defending employers in litigation matters and providing counseling to resolve employment-related disputes. She can be reached at 215-665-2925 or firstname.lastname@example.org.