What to Know About the “Bathroom Bills”

House Bill 2, the Public Facilities Privacy & Security Act, is the latest development in the culture war currently taking place over transgender rights in this country. The law was passed in response to a Charlotte ordinance which allowed transgender individuals to use the public bathroom. LGBT advocacy groups across the country rushed to condemn the law. Paypal announced that it was pulling a new global operations center (roughly 400 new jobs) from North Carolina because of the bill. The National Basketball Association announced it was reconsidering its decision to have the NBA all-star game in Charlotte.

Senator Lee Bright of South Carolina has introduced a similar bill in the South Carolina General Assembly. However, this bill is not expected to gain any traction at this point in time. This blog will continue to monitor the progress of this bill in the coming months.

What does all of this mean for employers? It is important to note that these laws apply only to public restrooms. Private employers remain free to make their own decisions regarding bathroom use. However, the EEOC interprets Title VII’s prohibition on sex discrimination to forbid discrimination based on gender identity. This protection applies regardless of any state or local law. Therefore, if you are an employer covered by Title VII, restricting bathroom use to an individuals’ biological sex could lead to a discrimination claim.

Finally, the Occupational Health and Safety Administration (“OSHA”) has published “A Guide to Restroom Access for Transgender Workers.” The guide provides in part that “regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.” A copy of the full guide can be found at https://www.osha.gov/Publications/OSHA3795.pdf.