On Monday, May 2, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new Fact Sheet titled “Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964.” This Fact Sheet serves as a reminder of the EEOC’s position that discrimination against LGBT individuals is a form of sex discrimination in violation of Title VII, and cautions employers against relying on recent state laws concerning transgender bathrooms as a shield from liability.

The EEOC’s position on transgender bathroom access rights was previously described in Lusardi v. Dep’t of the Army, 2015 WL 1607756 (March 27, 2015), where the EEOC held that:

  • Denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • An employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
  • An employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (although the employer can make a single-user restroom available to all employees who might choose to use it).

The Fact Sheet comes on the heels of recent laws passed in North Carolina and Mississippi restricting bathroom use by transgender individuals to the bathroom associated with their gender assigned at birth. The EEOC expressly stated in the Fact Sheet that state laws restricting transgender bathroom use are not a defense under Title VII.

The EEOC is not the only federal agency to have taken a stance on transgender bathroom use. The U.S. Department of Justice (“DOJ”) recently took a similar position with respect to this issue, as evidenced by a May 4 letter it sent to the Governor of North Carolina, Pat McCrory. In the letter, the DOJ states that both the Governor and the State of North Carolina’s compliance with H.B. 2, the law passed that requires people to use public restrooms associated with their birth, constitutes a violation of VII as a “pattern or practice of discrimination against transgender state employees[.]” Likewise, the Occupational Safety and Health Administration (“OSHA”) previously issued guidance on best practices for restroom access for transgender workers, which supported an employee’s access to the restroom that corresponds with his or her gender identity.

The Fact Sheet supplements the EEOC’s previously issued fact sheet on enforcement protections for LGBT workers, which highlights the EEOC’s enforcement of Title VII to combat discrimination of LGBT workers on the basis that Title VII’s prohibition on gender bias extends to sexual orientation and gender identity.

Leech Tishman’s Employment Practice Group has experience counseling employers on how best to navigate LGBT issues, and transgender issues in particular, in the workplace.

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