EEOC Issues Fact Sheet on Bathroom Access for Transgender Employees

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By:  Karen L. Piper

 

On May 2, 2016, the Equal Employment Opportunity Commission (EEOC) issued a Fact Sheet discussing its position on what Title VII requires of employers regarding bathroom access for transgender employees. Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.

The Fact Sheet 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).”  It is the EEOC’s position that Title VII prohibits an employer from:

  • Denying bathroom access to a common restroom that matches the employee’s gender identity;
  • Conditioning use of the restroom that matches the employee’s gender identity on proof of surgery or other medical procedure; and
  • Avoiding the requirement to allow equal access to common restrooms by restricting transgender employees to single-user bathrooms (instead of the common restroom), though employers can make single-use bathrooms available to all who choose to use it.

The Fact Sheet includes a link to the EEOC’s web page on How to File a Charge of Discrimination.  The EEOC is looking for opportunities to advance its position in private sector employment litigation.  Its current position is based exclusively on federal sector cases and the very recent Fourth Circuit opinion under Title IX (which prohibits discrimination based on gender identity by recipients of federal financial assistance). G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. April 19, 2016)

Until gender-neutral restrooms become the norm, an employer faced with an employee’s request to switch bathrooms should consult experienced legal counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. May 2016.