Fifty-two years ago, Bob Dylan penned the now-famous lyrics “The times they are a-changin’.” True enough, Mr. Dylan, but for many, changes come slowly, and as the late David Bowie sang: “The days still seem the same.” This can be true in regard to laws, which sometimes struggle to keep pace with changes in society. Would it surprise you to learn that only last May, Congress removed archaic racial terminology like “Oriental” and “Negro” from the federal lexicon? 
For employers dealing with transgender-related issues, the changing times have exposed a legal void of uncertainty. Time magazine recently called transgender issues the “New Civil Rights Frontier.” Yet despite a shifting and dynamic public perspective on transgender issues, Congress and federal agencies have provided little guidance to employers. As a result, many employers have been left in the dark, trying to divine the best way to deal with various related issues. None is as vexing as restroom accommodations.
Endless questions
When it comes to restroom accommodations for transgender employees, the questions that arise are seemingly endless. For example, how should you respond to an employee’s request to use the facilities that match his, her, or their gender identity? Should you request a medical professional’s confirmation? Should it matter if the person has already transitioned or has no intention of doing so in any outwardly noticeable way? How should you educate and/or deal with coworkers who express their own discomfort or other concerns?
Coincidentally, Congress enacted the Civil Rights Act (also known as Title VII) in 1964, the same year Dylan wrote “The Times They Are A-Changin’.” Although Title VII had the effect over time of reducing discrimination on the basis of race, color, national origin, sex, and religion, it didn’t create any protections for individuals who identify as transgender. To this day, Title VII doesn’t expressly recognize any protection for transgender individuals.
While the Equal Employment Opportunity Commission (EEOC) has declared that the term “sex” in Title VII includes transgender protection, that interpretation hasn’t been vetted extensively by the courts and may not be resolved until United States v. The State of North Carolina et al. (known as the “bathroom bill case”) works its way to the U.S. Supreme Court in two or three years. Even then, a ruling might not provide the guidance we might expect or want.
Little legal guidance
To date, only the Occupational Safety and Health Administration (OSHA) has published some form of legal guidance grounded in specific statutes and regulations on how employers should address restroom accommodations for transgender employees. Extrapolating from an employer’s obligation to provide safe, sanitary restrooms, OSHA states that as a model practice, employers should establish unisex or multioccupant gender-neutral bathrooms or allow transgender workers to use the facilities with which they identify, regardless of where they are in the transition process. That means employers would be instructed to allow a person who identifies as male to use the men’s restroom and vice versa.
OSHA emphasizes that restricting employees to using the facilities affiliated with their biology “singles those employees out and may make them fear for their physical safety.” According to OSHA, restroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness—an ostensible violation of the Occupational Safety and Health Act (OSH Act).
As potentially instructive as OSHA’s guidance may be, it’s only a published guidance, not the law. At least as things stand now, employers must look to their state legislatures for more definitive guidance. Here in New England, every state except New Hampshire has adopted some version of a restroom accommodation law.
Most recently, on July 8, 2016, Massachusetts enacted a transgender public accommodations law, which states that a transgender person now has the right to use the restroom and locker room that matches that person’s gender identity. On the opposite side of the spectrum, North Carolina passed a bathroom bill that requires individuals to select facilities based on their biological identity as opposed to their gender identity. That law has been the subject of extensive media coverage.
Bottom line
For employers in Massachusetts or North Carolina, the law is clear, and their obligations as an employer are clear. For employers in New Hampshire, the best general advice we can offer in this legal void is to communicate more with everyone involved, insist on a respectful dialogue at all times, and accommodate whenever reasonably possible. An open dialogue and a good-faith attempt to find common ground might result in the creation of a private restroom or permission for a person to use the restroom that matches his, her, or their gender identify.
Until clearer laws are established on this issue, employers in states like New Hampshire must navigate the legal void, balance the risks, and, when necessary, address their concerns with competent legal counsel.
Brian Bouchard is an attorney with Sheehan Phinney Bass & Green PA, practicing in the firm’s Manchester, New Hampshire, office. He is also a frequent contributor to New Hampshire Employment Law Letter. He may be contacted at bbouchard@sheehan.com.