Just weeks after Bob Kilroy and Amanda Baer presented on this topic at the Firm’s Annual Labor and Employment Seminar, the Equal Employment Opportunity Commission (EEOC) issued a Fact Sheet entitled Bathroom Access for Transgender Employees Under Title VII of the Civil Rights Act of 1964.  In the Fact Sheet, issued on May 2, 2016, the EEOC reaffirmed its position that interprets Title VII’s prohibition on sex discrimination to include discrimination based on transgender status.

Specifically with respect to bathroom access, the EEOC stated that “denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination,” and that an employer cannot require a transgender employee to provide proof of surgery or any other medical procedure in order to use the restroom corresponding to their professed gender identity.  In addition, the EEOC stated that an employer cannot require a transgender employee to use a single-user restroom, although the employer may make a single-user restroom available to all employees who choose to use it.

Perhaps in response to various state law “bathroom bills,” the EEOC stated that “[c]ontrary state law is not a defense” under Title VII.

Accordingly, the EEOC’s position is now clear and, while the Fact Sheet does not have the weight of a law or regulation, employers are well-advised to allow transgender employees to use the restroom corresponding to their professed gender identity.  If you have any questions regarding transgender discrimination and/or your responsibilities toward transgender employees, please feel free to contact us.