Reader: I’m a woman working with about 50 men. Our workplace has three bathrooms: one disability-accessible bathroom that all of us can use, one men-only single toilet with a private stall and a urinal, and a small bathroom with a sink and toilet that used to be women-only but is now unisex. I was told a year ago that a new women’s bathroom had been approved, but there’s been no information since on the construction.
I recently learned I need my gallbladder removed, and I’m worried about going to the bathroom at work after the surgery. I currently “hover” when I use the bathrooms, and it’s a difficult balancing act. I’ve decided not to have the surgery until after the women’s bathroom is built, and I let my manager know. I told him it is now a safety and health concern.
The bathroom issue is a real problem for me, but the company knows I don’t fight or cause problems. The word is that if one more woman worked in our area, the employer would build the new women’s bathroom. What can I do? I’ve grown tired of this struggle.
Karla: At first glance, this might seem like a gender discrimination issue. If the lack of a ladies’ room means you can’t take bathroom breaks as readily as your male co-workers can, that could be considered a “disparate impact” on women under Title VII of the Civil Rights Act, regardless of how many women actually work there, says Tom Spiggle of Spiggle Law Firm. You could file a complaint with the Equal Employment Opportunity Commission and request an investigation.
But since you have access to two of the three bathrooms, I can see your employer making an argument that the current distribution of bathrooms, though not equal in number, is equitable in light of the 50:1 gender ratio. (More inclusive recruiting and hiring practices could eventually weaken that argument, but that’s another column.)
But there are other issues besides gender. Spiggle notes that the Occupational Safety and Health Act requires employers to provide adequate bathroom facilities that are (1) sanitary and (2) available when needed. If the bathrooms are unsanitary to the point where you can’t safely use the toilets in the customary manner, you could file a complaint at the Occupational Safety and Health Administration (osha.gov). However, that seems like overkill if your problem could be resolved by asking your employer to provide seat wipes and covers.
Finally, there’s the not-so-small matter of your needing surgery and having concerns about using the facilities when you return to work. “No question in my mind that’s covered under the ADA,” says Spiggle. Under the Americans With Disabilities Act, when you have a condition that significantly limits a major life activity or function, your employer is obligated to discuss with you what reasonable accommodations may allow you to do your job.
Your doctor should be able to write a letter explaining your need for this surgery and what restrictions or accommodations will be necessary when you return to work. If it’s likely you’ll need more frequent or lengthy restroom breaks, and working from home is not an option, your employer is going to need to figure out how to ensure you have access to a safe, sanitary bathroom without inconveniencing others. Maybe that means expediting construction on the promised women’s bathroom, or renting a portable restroom unit.
In short, while you could petition under-resourced EEOC or OSHA enforcers to investigate your employer, having your doctor request an accommodation for your health seems like the fastest and least confrontational option.
I understand your reluctance to make waves. But jeopardizing your health by putting off needed surgery is not the “safe” option here.