EEOC Says Transgender Employees Can Choose Their Bathroom

Around this time last year, I blogged here about OSHA’s Guide to Restroom Access for Transgender Workers. According to OSHA, “all employees should be permitted to use the facilities that correspond to their gender identity.” And, it’s up to the employee to determine for him- or herself “the most appropriate and safest option.”

It should come as no shock that now the federal administrative agency tasked with enforcing anti-discrimination law has released a fact sheet, which reaches the same conclusions.

Reaffirming its 2015 holding in Lusardi v. Dep’t of the U.S. Army, and with a tip of the hat to a recent Fourth Circuit Title IX decision, the EEOC wants all employers — public and private sector alike — to know this about transgender employees and restroom access:

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).

Plus, if you live in a state that has a law which conflicts with any of these three bullets, the EEOC takes the position that federal law (namely, Title VII of the Civil Right Act of 1964) trumps.

But, many states and localities already have laws which mirror the EEOC’s position. Plus, more federal courts are adopting the EEOC’s position that discrimination based on sexual orientation and gender identity is sex discrimination.

So, if your business gives the EEOC’s position the back of the hand, you may end up being the one feeling the smackdown.