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Men’s Restroom? Ladies’ Restroom? Transgender Restroom? Does An Employer have to Offer Its Transgender Employees Unrestricted Access and Use to its Multi-Use Same Sex Restrooms?

Since the much awaited introduction of Caitlyn Jenner – formerly known as Bruce Jenner, the 1976 Summer World Olympics “male” decathlon winner and the famous face of the Wheaties brand cereal box – the issue of transgender persons has been the topic of conversations all across the globe. And, while the concept of a male identity born in a female’s body or a female identity trapped inside a male’s body certainly is not new, for many it remained a hidden, often tortured truth.

The issue today however is beginning to shed its taboo and perhaps most specifically, with regard to equal protection under the law.

Let’s take the case of the male born employee who is in the process of undergoing a sex change. Can an employer keep the employee from using the multi-user single sex restroom at least until the sex change is completed? This very issue was recently addressed by the Equal Employment Opportunity Commission in the case of Lusardi v. U.S. Department of the Army, EEOC Appeal No. 120133395 (April 1, 2015). In Lusardi, the employee was in the process of transitioning from a male to a female. The employee disclosed this process to the employer and the two decided it would be best for the employee to use the single-user restroom rather than the multi-user, female facilities at least until the gender transition was complete. However, when the employee couldn’t use the single-user facility and was found to have used the multiuser female restroom on several occasions, the employee was told that doing so made co-workers uncomfortable and therefore the employee was restricted until proof of the surgery was provided.

The EEOC however disagreed and found that restricting the employee to the single-use bathroom subjected the employee to disparate treatment based on sex.

Transgender persons are indeed provided protections under both Title VII of the Civil Rights Act of 1964 and the Fair Employment and Housing Act (“FEHA”) – so it would be safe to say that yes, as an employer you are required to provide unrestricted restroom access and use to all employees based not simply on his/her assigned sex at birth but according to that employee’s full time gender presentation regardless of whether other employees feel uncomfortable.

“Sex discrimination” under these two acts covers discrimination based on the biological differences between men and women as well as gender, meaning a person’s appearance and behavior irrespective of that person’s assigned sex at birth.

So what does this mean for an employer? Well, simply stated, all persons – regardless of sexual identity – are to be treated equally. And, if restrictions are placed upon a person because of his/her “sex” an employer may pay a hefty price.

If you think you have been subjected to illegal employment discrimination, contact the lawyers at The Pagano Law Firm and ask for a free consultation.

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