At a client’s the other day we had a discussion about the use of bathrooms by people not the sex listed on the door. In this particular case it was a situation of mistaken identity of a woman in men’s clothing. They were wondering what to do.
EEOC issues guidance
On May 2, 2016 the EEOC weighed in the bathroom use controversy raised by the North Carolina law on the same. Here are some of the major points of this fact sheet.
- “Transgender” refers to 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)…. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.
- The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation).
- The EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
- An employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
- 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).
- Contrary state law is not a defense under Title VII. (State laws do not trump federal law in these cases. My italics.)
- Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.
- Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.
Guidance to employers
The document makes it clear that employers cannot rely on state law in taking actions in the case of gender identity. Denying someone access to a restroom on the basis of the employer’s perception is not legal and cannot be argued or defended by state law. Employers have to accept how individuals define themselves and even protect them from discrimination or harassment on the part of other employees. Other employees’ discomfort levels are not to be considered. That is certainly a slippery slope.
One way to offset this is to convert all bathrooms to single occupant rooms that are sex neutral.
You can view the entire guidance document here.