by Michelle Ferber and Ben McDonald
The United States Equal Employment Opportunity Commission (EEOC) has issued guidance to American employers with regard to bathroom access for transgender employees. Since 2012, the EEOC has held that discrimination based on transgender status is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination regardless of motivation and applies to all government employers and private employers with 15 or more employees.
A transgender person is one whose gender identity is different than the sex assigned to that person at birth. For example, the term transgender woman may refer to a person who was assigned the male sex at birth, and whose birth certificate states male, but whose gender identity and expression is female. Vice versa, the term transgender man may refer to a person assigned the female sex at birth but who identifies as a male and lives life as a male.
In summarizing its recent cases, the EEOC advises employers that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination. An employer must allow an employee to access the restroom that conforms to the employee’s gender identity. Employers cannot attempt to avoid this access requirement by restricting a transgender person to a single-user restroom. However, the restroom access law does not prevent an employer from providing a single-user bathroom to all employees. Furthermore, an employer cannot condition restroom access on the employee either undergoing or providing proof of any surgery or medical procedure. A transgender person need not undergo any medical procedures to be considered transgender as all that matters under the law is how the person expresses gender identity.
The EEOC cautions employers that supervisory and co-worker confusion or anxiety with regard to transgender people cannot justify discriminatory terms and conditions of employment. While non-discrimination laws do not require people to change their personal beliefs, these laws do require that all people be free to perform their jobs free from discrimination by requiring non-discriminatory workplace treatment. The EEOC also cautions employers that contrary state law is not a defense under Title VII. This means that even if an employer’s state law purports to permit restroom access discrimination for transgender people, the employer will still be subject to liability under Title VII for restroom access discrimination.
The EEOC’s guidance merely bolsters the obligations of California employers to provide equal restroom access because the California Fair Employment and Housing Act (FEHA) has explicitly prohibited gender-identity discrimination for years and applies to smaller employers (five or more). As employers are responsible for providing a discrimination free workplace, all employers are encouraged to notify employees that gender-identity based discrimination is unlawful and will not be tolerated. Depending on what kinds of restroom facilities are available for employees (single-occupant or common), employers should consider instituting a written policy notifying employees of their protected right to use the restroom in conformity with their gender expression.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.