EEOC ISSUES GUIDANCE ON TRANSGENDER DISCRIMINATION AND ACCESS TO BATHROOMS IN THE WORKPLACE

On Monday, the EEOC notified employers that denying a transgender employee equal access to a common restroom that corresponds to the employee’s asserted gender identity constitutes sex discrimination. In its Fact Sheet, the EEOC built on its recent decisions in Macy v. Dep’t of Justice and Lusardi v. Dep’t of the Army, and made three points:

• 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).

The EEOC further emphasized that the comfort of other employees or gender-based stereotypes and perceptions must not interfere with the right and ability of any employee to work in an environment free of sex discrimination and harassment. The EEOC also rejected the idea that an employee needed to undergo sexual-reassignment surgery to be considered a transgender man or transgender woman or to obtain access to a common restroom for a particular gender.

It is clear from the EEOC Fact Sheet that sex discrimination against transgender individuals is a hot-button issue for the EEOC right now, and employers should carefully analyze any policies or employee situations that may implicate alleged transgender discrimination concerns.

A copy of the EEOC’s Fact Sheet on Bathroom Access Rights for Transgender Employees is available here:  https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm.