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May 5, 2016

EEOC Issues Guide On Bathroom Access Rights
For Transgender Employees

On May 2, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet on “Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964.”

The fact sheet reemphasizes the EEOC’s ruling in Macy v. Dep’t. of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), that discrimination against individuals based on their transgender status is sex discrimination in violation of Title VII. The fact sheet also calls attention to the EEOC’s recent decision in Lusardi v. Dept. of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), which held that: (1) it is sex discrimination to deny an employee equal access to a common restroom that corresponds to his or her gender identity; (2) employers may not require employees to show proof of surgery or any other medical procedure before allowing access to the bathroom associated with his or her gender identity; and (3) employers cannot restrict a transgender employee to a “single-user restroom,” though employers can make single-user restrooms equally available to all employees.

Title VII only applies to federal, state, and local government agencies “in their capacity as employers,” as well as to “all private employers with 15 or more employees.” The fact sheet broadly defines “transgender” as people “whose gender identity and/or expression is different from the sex assigned to them at birth.” This definition is not limited to individuals who have undergone medical procedures.

The fact sheet cautions that employers must not allow “gender-based stereotypes, perceptions, or comfort level” to impede an employee’s ability to work without being subjected to discrimination, including harassment.

The EEOC asserts that “contrary state law is not a defense.” For example, North Carolina’s recently passed law, which dictates that transgender individuals must use public restrooms that correspond to the gender on their birth certification, would not be a defense against discrimination claims in North Carolina.

The guide does not require employers to alter their personal beliefs. However, those beliefs cannot be used as justification for sex discrimination against transgender employees.

The fact sheet can be found at https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm.

Takeaway for Employers

The EEOC guidance does not have the force of law, but it is an indication of how the EEOC will address sex discrimination charges relating to transgender employees in the future. Employers should take note that certain state and local laws already protect against such discrimination. Employers should also consider reviewing their current policies to comply with the EEOC’s stance on sex discrimination based on bathroom access rights.

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If you have any questions regarding this Guidance, please do not hesitate to contact us.