Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.
The issue, however, that seems to get the most press is restroom access.
Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.
What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.
But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.
Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.
In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC 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; 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).
Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7. In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.
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.”
Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.
For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity. But it can also mean turning single-occupant bathrooms into gender-neutral ones too. You can look at the OSHA guidance on this issue for more best practice tips. If any employee complains, well, that’s not enough of a reason to deny access.