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EEOC Speaks on Transgender Bathroom Rights

By Erin D. Schilling

The EEOC continues to provide protections from discrimination for the LGBT community. Last week the EEOC issued a new fact sheet on bathroom access rights for transgender employees under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s fact sheet follows guidance from the Occupational Safety and Health Commission on this issue, which we addressed last year

The new fact sheet reminds employers of the EEOC’s position that discrimination against a person based on their transgender status violates Title VII, and further, that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination. The fact sheet also states that contrary state law is not a defense under Title VII.

While the EEOC’s fact sheet is a statement of the EEOC’s position (not a regulation or statute), employers should consider the EEOC’s position when making policy decisions on restroom availability for transgender employees. The EEOC has filed a number of lawsuits seeking to protect transgender employees from discrimination, and this new fact sheet indicates the EEOC will continue to enforce such protections.  

The issuance of the EEOC fact sheet follows passage of a North Carolina law, known as H.B. 2, that limits transgender people’s access to public restrooms. The state law was enacted to invalidate a Charlotte city ordinance that, as of April 1, 2016, would have extended anti-discrimination protections to LGBT individuals and allowed transgender people to use the bathroom of their choice.

The battle over this North Carolina law continues to heat up. On Monday, May 9, 2016, the state of North Carolina filed a lawsuit against the federal government seeking a declaratory judgment that H.B. 2 is not discriminatory. That same day, as promised, the U.S. Department of Justice filed a lawsuit alleging that H.B. 2 violates Title VII.

You can find a copy of the EEOC’s fact sheet here and further information from the EEOC on enforcement protections for LGBT workers here