May 18

Over the past several months, there has been a flurry of media coverage surrounding transgender restroom access being provided by many large businesses.  The Equal Employment Opportunity Commission (“EEOC”) has now taken the opportunity to put employers on notice of its position that denying an employee access to a restroom corresponding to the employee’s gender identity is sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

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 a person need not undergo any medical procedures to be considered transgender.  The EEOC’s recently published fact sheet refers to past administrative rulings, and provides employers the following guidance concerning restroom access for transgender employees:

  1. Denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  2.  An employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
  3. 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 has also made it clear that contrary state law is not a defense to Title VII enforcement.  For example, employers in North Carolina may be subject to Title VII liability for sex discrimination, even though North Carolina state law does not require transgender restroom access in the workplace.

The employment law landscape is ever-changing and changing fast.  The transgender workplace restroom issue is but one example that highlights the need for employer’s to be diligent of their obligations in order to ensure compliance and avoid litigation.