In the midst of all the media coverage surrounding transgender bathroom policies, the Equal Employment Opportunity Commission (EEOC) has recently put employers on notice of its position that denying an employee access to a restroom corresponding to the employee’s gender identity is sex discrimination in violation of Title VII of the Civil Rights act of 1964.

This recently released information provides employers with helpful insight into what policies and practices the EEOC will be looking at in the event of a charge of discrimination alleging sex discrimination in the circumstance of transgender restroom usage.

[Image credit: Department of Justice]
EEOC Commissioner Jenny R. Yang
[Image credit: Department of Justice]

The EEOC defines transgender as “people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate)” and stated that a person need not undergo any medical procedures to be considered transgender. The recently released fact sheet cites the EEOC’s prior administrative rulings from 2012 and 2015, the most recent of which 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

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)

The EEOC stated these protections address conduct in the workplace and do not require employees to change their beliefs. According to the EEOC, “Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

Taking aim at any potentially conflicting state laws, the EEOC also noted that contrary state law is not a defense under Title VII.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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Phil Phillips

Phil Phillips

Philip B. (“Phil”) Phillips is a litigation partner with Foley & Lardner LLP.