November 2015 - Parks & Recreation - 33

designated for use by a particular gender.
Under no circumstances may an agency require an employee to use facilities
that are inconsistent with the employee's
gender identity. Agencies are encouraged
to provide unisex, single-user restrooms
when feasible to maximize comfort and
access for everyone, including individuals with disabilities and those with
young children; however, transgender
employees should not be limited to using
these facilities.
The OSHA publication also provides guidance to employers on best
practices regarding restroom access for
transgender workers, including single
-occupancy, gender-neutral (unisex)
facilities or use of multiple-occupant,
gender-neutral restroom facilities with
lockable, single-occupant stalls.
The OSHA publication cites federal, state and local laws that reaffirm
the core principle of providing employees with access to restroom facilities based on gender identification.
EEOC
As noted in the OSHA publication,
in April 2015, the EEOC ruled that a
transgender employee cannot be denied access to the common restrooms
used by other employees of the same
gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions
to allowing the employee to do so.
The EEOC held that such a denial of
access constituted direct evidence of
sex discrimination under Title VII.
The EEOC has also published an informational guide titled, " What You
Should Know About EEOC and the
Enforcement Protections for LGBT
Workers "
(www.eeoc.gov/eeoc/
newsroom/wysk/enforcement_protections_lgbt_workers.cfm). In so doing, the EEOC acknowledged, " Title

VII of the Civil Rights Act of 1964
does not explicitly include sexual orientation or gender identity in its list
of protected bases. " That being said,
" consistent with case law from the
Supreme Court and other courts, "
the EEOC has interpreted Title VII's
" sex discrimination provision " as
" prohibiting discrimination against
employees on the basis of sexual orientation and gender identity. "
Title VII prohibits discrimination
in the workplace. In the Johnston case
described herein, Title VII was not
applicable because the alleged sex
discrimination was unrelated to the
workplace. Similarly, in this particular case, the Americans with Disabilities Act (ADA), requiring reasonable accommodations for disabled
individuals, would not be applicable
because gender identity disorders are
expressly excluded from the statutory
and regulatory definition of " disability " under the ADA.
In Johnston, gender discrimination
was alleged under Title IX. Title IX
prohibits gender discrimination by
federally funded educational institutions. In this particular instance, the
federal district court found no basis
for a claim of sex discrimination under Title IX. In so doing, the court
applied the same reasoning described
below to reject plaintiff Johnston's
claim of sex discrimination in violation of the Equal Protection Clause.
The reasoning of the federal district
court in this particular case seems to
be at odds with the guidance from
OSHA and EEOC cited above. Specifically, in the absence of applicable
federal law to the contrary, the federal court in Johnston found birth
gender to be determinative, not gender identity, for restroom and locker
room access.

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Parks & Recreation

November 2015 - Parks & Recreation

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