Bathroom Disputes Emerge in the Workplace
By Scott M. Wich
Nov 17, 2016 - SHRM
Since Title VII of the Civil Rights Act of 1964 was
passed over 50 years ago, its prohibition on discrimination because of "sex" has
given rise to one of the most litigated definitions of a protected class. Over
the years, various parties have urged that "sex" is meant to be a biological
characteristic, a gender stereotype or a gender identity. The U.S. District
Court for the District of Nevada recently addressed the scope of Title VII's
prohibition against sex discrimination in the context of bathroom access for
transgender individuals.
[SHRM members-only toolkit: Employing Transgender Workers]
Bradley Roberts is a transgender police officer for a
school district in Clark County, Nev. He was hired in 1992 as a school monitor..
Roberts eventually graduated from a law enforcement academy and worked as a
police officer for the school district for 17 years.
In 2011, Roberts began dressing, grooming and
identifying himself as a man. Female employees made complaints about Roberts
continuing to use the women's bathroom. Upon investigation, Roberts confirmed to
his supervisors that he was transgender, was in the process of transitioning
from female to male and wished to use the men's bathroom. Roberts' supervisors
denied him access to the men's bathroom and directed him to limit himself to
gender-neutral bathrooms "to avoid any future complaints."
In the following weeks, Roberts complained of several
issues related to his gender identity, including his lack of access to the men's
bathroom. However, Roberts was repeatedly directed to use only gender-neutral,
or single occupancy, restrooms. Roberts filed a lawsuit asserting a violation of
Title VII's prohibition against discrimination based on sex by reason of the
limitations placed on his bathroom usage.
On this bathroom issue, the district court granted
summary judgment in favor of Roberts. The court noted that, at its inception,
Title VII was intended, in relevant part, to prohibit discrimination "that
impeded women from attaining 'equal footing with men.' " However, it also noted
the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, which
extended Title VII's prohibition to gender stereotypes. In Price
Waterhouse, the Supreme Court found stereotypes to be unlawful since the
law "mean[s] that gender must be irrelevant to employment decisions."
The district court referenced a split in authority
over whether Title VII protections extend to issues of gender identity. However,
the court adopted an interpretation of Title VII that "discrimination because
one fails to act in the way expected of a man or woman is forbidden under Title
VII." In the court's opinion, therefore, it is unlawful to discriminate against
a transgender employee because the individual does not conform to traditional or
stereotypical societal expectations for men and women. The court also
highlighted the fact that the Equal Employment Opportunity Commission's current
interpretation of Title VII forbids discrimination against a transgender
person.
The court found no dispute that Roberts was treated
differently because of his biological sex and gender identity.
Roberts v. Clark County School District, D.
Nev., 2:15-cv-00388-JAD-PAL (Oct. 4, 2016).
Professional Pointer: The expansion
of Title VII, and similar state antidiscrimination laws, into workplace rules
concerning bathroom usage creates complicated and sensitive issues arising from
the intersection of employment discrimination, the potential for hostile work
environments, employee privacy and workforce morale. Employers facing such
situations are well-advised to seek counsel in advance of implementing rules
governing restroom access.
Scott M. Wich is an attorney with Clifton Budd & DeMaria, LLP in New York
City.