Gender Identity and The Legal Right to a Restroom
EEOC: EMPLOYERS, YOUR EMPLOYEES HAVE THE LEGAL RIGHT OF ACCESS TO A RESTROOM THAT CORRESPONDS WITH THEIR GENDER IDENTITY
The Equal Employment Opportunity Commission (EEOC) recently issued a Fact Sheet which unequivocally states that an employer is guilty of unlawful gender discrimination if they restrict the employee’s access to a restroom that is not consistent with the employee’s gender identity.
The Fact Sheet defines transgender as “people whose gender identity and/or expression is different from the sex assigned to them at birth” and it enforces Title VII if of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion and sex. While Title VII applies to all federal and state and local government agencies, for a claim against a private employer the employer must employ at least 15 employees.
The EEOC in Lusardi v. Dep’t of the Army, held that “denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.” It further explained that 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.” “Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi: “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.””
While states are currently debating on the use of restrooms by transgender individuals, the EEOC has made it clear that state law is not a defense under Title VII claims. While the courts have not engaged in a case to decide if they will adopt the interpretation of the EEOC’s regarding transgender employees restrooms, the Fact Sheet does highlight the EEOC’s position in future cases. Employers should assure that all employees are able to use a restroom facility that either corresponds with their gender identity or a gender-neutral restroom for any employee who chooses to use it or they risk legal exposure under the EEOC’s articulated policy of enforcement.
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