Current Legality Status
A new California law, which took effect March 1, 2017, requires all single-stall restrooms in businesses, government agencies, or places of public accommodation to be accessible to all genders. The intent is to allow transgender people access to public restrooms without concern for their safety or the threat of harassment.
Requiring gender-neutral bathrooms in California is consistent with the current overall trend of affording greater protections to the state’s transgender population.
Sexual Orientation & Gender Identity in the Workplace
In addition to sexual orientation, employees are protected by the law from discrimination based on gender identity or transgender status. As employees are more openly communicating their status and needs, employers may want to have a plan for how they will respond.
While most states do not have specific laws around gender-neutral restrooms, the guidance from DOL, EEOC, and OSHA is to allow employees to use the restroom that they feel most comfortable using or reflects their identity – even through the employee’s gender transition process.
Employers are required to make reasonable accommodations so that protected employees can perform their job safely and effectively. This may include use of a gender-specific restroom with which the employee identifies, as well as respecting and referring to the employee based on their gender identity.
Employers and managers should be prepared to have open conversations with employees about how they wish to be referenced and which pronouns they prefer. Transgender or gender fluid individuals may prefer non-gendered pronouns – “they” instead of “he” or “she.” Be sure to ask and not assume, however.
Another accommodation example may be an employee requesting leave due to the side effects of hormone treatment. In all cases, requests for accommodation should be carefully considered and evaluated on a case by case basis.
Employers may wish to revisit their existing policies, such as dress code and appearance policies, that reference different expectations for males and females, and train their managers on how to navigate specific scenarios. When supervisors are unaware of employee protections and requirements under employment laws, HR and company leadership may not be aware of the issue until the employee quits and files a discrimination claim.
Additionally, employers ought to consider including in their onboarding and employee training programs expectations and strategies for maintaining a respectful wok environment, as well as recognizing and preventing harassment and discrimination. In addition to protecting the company and ensuring all employees are aware of what’s expected, the company will also be fostering an inclusive and progressive culture.