The United States Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet on Bathroom Access for Transgender Employees. It can be found here: Fact Sheet On Bathroom Access for Transgender Employees
The EEOC’s Fact Sheet seems to be a response to laws recently passed by States and even local governments. Among other things, those laws restrict the ability of transgender people to use restrooms consistent with their gender identity. Thus, the EEOC plainly warns that “state law is not a defense” to a transgender discrimination claim under Title VII of the Civil Rights Act of 1964.
Other than providing a warning to governmental entities, the Fact Sheet basically provides a summary of the EEOC’s previous rulings on transgender discrimination, which hold:
- 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 (though the employer can make a single-user restroom available to all employees who might choose to use it).
In addition to the EEOC’s Fact Sheet, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors. The Department of Labor’s Fact Sheet interpreting that order provides:
Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.
That fact sheet can be found here: DOL Fact Sheet on LGBT Discrimination
I previously discussed LGBT issues here: EMERGING LGBT ISSUES IN THE WORKPLACE. The EEOC is clearly looking to enforce Title VII to prohibit discrimination on the basis of gender identity or sexual orientation. At this point, the best advice for employers is to ensure that transgender employees are provided equal access to restrooms consistent with their gender identity.