The Equal Employment Opportunity Commission (EEOC) recently issued a Fact Sheet regarding restroom access rights for transgender employees that can be found at https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm. The Fact Sheet explains the EEOC’s position that, under Title VII of the Civil Rights Act of 1964 (Title VII), restricting a transgender employee’s access to restrooms that is not consistent with the employee’s gender identity constitutes unlawful sex discrimination. The EEOC reasons that discrimination on the basis of sex, which Title VII prohibits, necessarily includes discrimination on the basis of transgender status.
The Fact Sheet defines transgender as one whose gender identity and/or gender expression is different from the sex assigned to him or her at birth. Gender identity is an individual’s sense of being male or female, while the manner in which an individual expresses his or her gender is referred to as gender expression. A person does not need to undergo any medical procedures to be considered a transgender individual.
The Fact Sheet explains that, according to the EEOC, restrictions on a transgender employee’s access to restrooms that other persons of the employee’s gender are freely permitted to use, as well as restricting a transgender employee to a single-user, gender-neutral or another specific restroom, constitutes unlawful sex discrimination. Further, according to the EEOC, employers cannot limit access to restrooms because of concerns of coworkers’ reactions or by relying on state laws that are contrary to the EEOC’s interpretations.
At this point, the question of whether the courts will adopt the EEOC’s interpretation of Title VII regarding transgender employees’ restroom rights remains open; however, in the interim, the Fact Sheet makes clear that the EEOC will pursue the foregoing position when considering charges. Therefore, to avoid possible litigation over this issue, employers should allow all employees to use restroom facilities that correspond with their gender identity, and when feasible, provide additional options, such as a single-user, gender-neutral restroom for any employees who choose to use it.