Discrimination based on gender identity or gender expression has received a large amount of attention, partly due to advances made by advocates for transgender and gender non-conforming individuals in the workplace and elsewhere. It is also due to pushback against those advances. New Jersey employment law specifically bars discrimination based on gender identity and gender expression, while federal law treats it as a form of sex discrimination. The use of restrooms in the workplace has been a topic of particular controversy in recent weeks due to a dispute involving the first openly transgender woman elected to Congress. New Jersey law generally states that employers must allow bathroom use based on individual gender identity.
The Occupational Safety and Health Administration (OSHA) requires “lavatories…in all places of employment,” with only a few exceptions. Employers may have restrooms separated by sex or unisex restrooms. OSHA regulations are primarily concerned with sanitation and employee health, although the agency offers guidance on gender identity issues.
The New Jersey Law Against Discrimination (NJLAD) states that employers may not discriminate against employees or job applicants “because of [their]…gender identity or expression.” The New Jersey Attorney General’s Division on Civil Rights interprets this provision to include “us[ing] a bathroom or changing room consistent with [an individual’s] gender identity or expression.” The state government’s policy on individuals who are transitioning their gender identity or expression includes a provision on restroom access, which requires state employers to provide “the same level of restroom access available to non-transgender individuals.”
Title VII of the Civil Rights Act of 1964 does not specifically include gender identity or expression as protected categories. The U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, however, held that the statute’s prohibition on sex discrimination necessarily includes discrimination based on sexual orientation, gender identity, and gender expression. Bostock did not specifically address restroom access, but a dissenting opinion by Justice Alito stated that the ruling would affect “bathrooms, locker rooms, or anything else of the kind.”
The Equal Employment Opportunity Commission (EEOC) issued a June 2021 guidance document addressing how Title VII applies to discrimination based on sexual orientation or gender identity after the Bostock ruling. It states that if an employer provides restrooms and other facilities separated by sex, it “may not deny an employee equal access…that corresponds to the employee’s gender identity.”
In October 2022, a federal judge in Texas ruled that the EEOC’s June 2021 guidance document was unlawful. The judge found that, while the guidance followed the Supreme Court’s Bostock ruling, it violated the procedures outlined in Title VII for issuing “substantive, legislative rules.” The ruling also held that the EEOC violated provisions of the Administrative Procedures Act that require publishing proposed rules in the Federal Register and accepting comments from the public.
The recent dispute over restrooms in Washington, D.C. does not directly affect New Jersey employees, although it could in time. A member of the House of Representatives objected to a newly elected transgender woman’s use of women’s restrooms in the Capitol building. She introduced a resolution that would limit the use of restrooms by House members and employees to the one “corresponding to their biological sex.” She also introduced a bill that would extend the same restrictions to almost all federal property.
The experienced and knowledgeable employment lawyers at the Resnick Law Group advocate for the rights of New Jersey and New York employees who have experienced discrimination and other unlawful practices in the workplace. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation to see how we can assist you.