Bathroom Disputes Emerge in the Workplace

By Scott M. Wich Nov 17, 2016

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.

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