Remember those unisex bathrooms in Ally McBeal? Well, get ready – you may soon be sharing a bathroom with a fellow employee of the opposite sex – at least biologically. This was my takeaway from a recent seminar presented by the Atlanta Office of the EEOC.
The newest wave of LGBT litigation arises out of the “T” in LGBT – transgender employees. While there are many conceivable issues that may arise involving these employees, the one that inspired the most discussion at the EEOC conference was the bathroom. In other words, if an employee presents as Jimmy on Friday but presents as Samantha on Monday, should she be permitted to use the women’s bathroom? What if other female employees are not comfortable with her using the women’s bathroom? And does it make a difference if the transgender employee has not surgically changed her gender?
From the EEOC’s perspective, the answer is simple – the employer should not concern itself with the discomfort of the other employees. Instead, the question should be, what is the transgender employee comfortable with? If the transgender employee feels most comfortable in the women’s bathroom, then she should be able to use that bathroom. The EEOC analogized the issue to race. In effect, substitute a black employee for the transgender employee. The argument goes that an employer could not deny a black employee the right to use a bathroom with white employees because it made the white employees uncomfortable. While that may seem unthinkable to us now, it may not have sounded so outlandish in the 1950s. Just as attitudes about race changed in the face of the civil rights movement, the EEOC believes that attitudes about the transgender community are changing as well. And with that, the EEOC is suggesting that the employer’s response to and treatment of these employees must also change.
One EEOC official recommended installation of a separate, one-stall bathroom for those employees who were not comfortable sharing with the transgender employee. This likely does not present a viable solution for most employers because of space and cost restrictions. Instead, instructing all employees to share the bathroom may present as the only rational, economically feasible way to satisfy the EEOC. The logical result is that unisex bathrooms will be standard in the workplace within five years. Ally McBeal, here we come.