EEOC COMMENTS ON TRANSGENDER BATHROOM ACCESS IN THE WORKPLACE

By May 16, 2016Blog

Transgender bathroom policies have been a hot topic in the news. The heightened increase in the topic’s public debated has prompted the Equal Employment Opportunity Commission (EEOC) to clarify its position on the topic. The government agency released a fact sheet to help clarify what it expects of employers. 

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. Below contains some highlights of the the EEOC’s recently released fact sheet. The document cites the agency’s prior 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 fact sheet also states:

  • Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
  • Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.” 
  • Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

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