Transgender Rights and Employee Bathrooms

transgender LGBTQ+ Title VII Alabama Employment Law
Employers should proceed cautiously if they want to deny transgender employees the right to use the bathroom of their choice.

In June, the United States Supreme Court issued its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (Jun. 15, 2020).  In Bostock, the Court found that discrimination against employees on the basis of sexual orientation or transgender status violates the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964.  Here is a more-detailed blog that I wrote on Bostock: Bostock – LGBTQ+ Decision.  A recent decision from the Eleventh Circuit Court of Appeals suggests that it might also be discriminatory to deny transgender individuals access to the bathroom of their chosen gender.  See Adams. v. School Board of St. Johns County, No. 18-13592, 2020 WL 4561817 (11th Cir. Aug. 7, 2020).

Adams Involves Schools and Students, Not Employers

Importantly, Adams is not a Title VII case.  Instead, it concerned the rights of a transgender student to be free from discrimination in a public school.  As a result, the student pursued discrimination claims under the Equal Protection Clause of the United States Constitution and Title IX of the Civil Rights Act.

The sole issue in Adams was the use of restrooms.  Drew Adams was assigned the female gender at birth but began to transition to the male gender.  He commenced ninth grade and presented as a boy.  For his first six weeks as a ninth grader, he used the boys’ restroom.  However, he was told that he could no longer use the boys’ restroom when two unidentified girls complained.  There were no complaints from boy students who shared the bathroom with Adams.  Nevertheless, the school system offered Adams two choices:  (1) use a single-stall gender-neutral bathroom; or, (2) use the girls’ facilities.  The school board believed that offering single-stall restrooms reconciled accommodations for transgender students with privacy concerns for non-transgender students.  Yet, Mr. Adams felt “alienated and humiliated” every time he was required to use the gender-neutral bathroom.

This is a case where facts played a huge role because the school board presented no facts indicating that any male student complained or that any “untoward” activities occurred in the bathroom.  As a result, two judges of the Eleventh Circuit repeatedly criticized the “hypothetical” dangers of allowing transgender students to use their chosen restrooms.

The majority also relied heavily upon Bostock when deciding Mr. Adams’s Title IX claim:  “Bostock confirmed that workplace discrimination against transgender people is contrary to the law.  Neither should this discrimination be tolerated in schools.  The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for differential treatment because of his transgender status.  It caused him psychological and dignitary harm.  We affirm the District Court’s ruling that maintaining this policy violated Title IX.”  Adams, 2020 WL 4561817 at *16.

Lessons for Employers

Adams is extremely important for employers, even though it explicitly applies only to the relationship of schools and students.  At least two judges of the Eleventh Circuit believe that denial of access to a chosen bathroom is discriminatory.  As a result, if employers deny transgender employees the right to utilize their chosen bathroom, their risk-level under Title VII increases.

In my opinion, however, a mere denial of a chosen restroom should not amount to a violation of Title VII.  Usually, an employee can only succeed in proving discrimination under Title VII if he or she suffers an “adverse job action.”  And, a job action must be “materially” adverse.  In other words, if there is monetary risk associated with an action, it will probably be adverse.  Since denial of a bathroom doesn’t logically involve denial of money, it should not be enough, by itself, to support a successful Title VII claim.

Despite my views, the EEOC has on at least one occasion found that requiring a transgender woman to use a single-stall bathroom violated Title VII.  See Lusardi v. McHugh, EEOC Doc. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).  The Lusardi decision originated on Redstone Arsenal in Huntsville.   Among other things, a transgender female Army employee was required to use a single-stall “executive” restroom rather than the restroom assigned to women.  The EEOC reviews discrimination complaints from federal agencies and determined that the bathroom assignment sufficiently altered the terms and conditions of Ms. Lusardi’s employment to violate Title VII.  A copy of the Lusardi opinion can be found here:  Lusardi Opinion

Viewed in tandem, the Lusardi and Adams cases should cause employers to think carefully if they decide to deny a transgender employee the opportunity to use their chosen bathroom.  Even if I am right, and denial of a bathroom does not, by itself violate Title VII, the denial could still be used against an employer.  For example, I think that denial of a chosen bathroom could be one piece of evidence to use in a sexual harassment/hostile work environment claim under Title VII.  Typically, an employee must show that their workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.  Denial of a bathroom might be one factor in finding a “severe or pervasive” work environment.

As I noted in the discussion of Adams, above:  facts matter.  It’s possible that a different result might be reached in a case where an employer can show that other employees using the restroom complained or that “untoward” conduct occurred.  In any case, employers need to consult with their attorneys before taking any action that treats a transgender employee differently.