pee police

The Big Problem If ENDA Doesn’t Stipulate What Changes Must Be Made to Employee Bathrooms


As members of the House debate whether the Employment Non-Discrimination Act is something this country needs to keep queers safe in the workplace, should they also, by the end of all of this, issue strict directions on what employers need to do about the signs they hang on bathroom doors?

Of the many objectives activists have for ENDA, providing “bathroom rights” to transgender employees is one of them. But that’s no easy issue, as Kalamazoo, Michigan, can attest. Just because we want to give transgender Americans the freedom to use the bathroom they’re most comfortable with doesn’t mean corporations know how, exactly, they should go about doing that. After all, one employee’s bathroom rights is another employee’s potential sexual harassment lawsuit. And employers would love to not have to deal with that situation.

So surely Congress will provide some guidance then? Not quite.


Which is why Chicago labor attorney Camille Olson, of the firm Seyfarth Shaw LLP, testified before the Senate Committee on Health, Education, Labor and Pensions — of which only three of the Committee’s 23 members showed up for — and reiterated the concerns she hears from her clients (read: businesses): It is “absolutely critical to have clarity” on which bathroom facilities need modification, and just what type of modifications are deemed necessary, she said. While ENDA would not apply to “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable,” it would require employers to provide “reasonable access to adequate facilities” for transgender employees.

And without specific guidance from ENDA on what that means, businesses will find themselves unclear on what needs changing, says Olson.

But that concern seems to be too specific for Committee Chairman Sen. Tom Harkin (D-Iowa), who responded “no legislation can cover every conceivable” scenario that might arise out of a claim of discrimination. Instead, ENDA must provide “broad guidance to the courts.”

Which is all well and good, but Olson’s concern isn’t one of degradation or nuance. Sure, she represents American corporations, which have an interest in abiding by the law with the least expensive means and smallest amount of effort. But without specific guidelines about what corporations need to do so transgender employees can go to work and not feel discriminated against at the bathroom, these companies are left to decide what’s fair.

And that means, from one office park to the next, transgender staffers could see a wide variety of supposedly discrimination-free facilities. And that’s not good for anyone.

U.S. Senate holds first ever hearing on inclusive ENDA [Bay Windows]