male-709687_640This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity.  Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity.

The EEOC relied on two federal sector cases and one recent Fourth Circuit case as the basis for its Fact Sheet.   The federal sector cases were Macy v. Dep’t of Justice, EEOC Appeal No.0120120821, 2012 WL 1435995 (Apr. 12, 2012), and Lusardi v. Dep’t of Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015).  In Macy, the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi, the EEOC held that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.  Lusardi, an Army employee, was in the process of transitioning from male to female when her employer required her to use a single-user restroom.  The Army stated that it would only allow her to use the women’s restroom after she underwent a medical procedure.   The Fourth Circuit case of G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016) involved a transgender high school student who was precluded from using the common restroom that corresponded with the student’s gender identity.  The Fourth Circuit deferred to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker room access consistent with their gender identity.

The Fact Sheet even sets out a separate bullet point to state that “[c]ontrary state law is not a defense under Title VII.”  This is likely a dig at the recent North Carolina Law (HB 2) which requires public agencies to require multiple occupancy bathrooms or changing facilities to be designated for and only used by persons based on their biological sex.  (Another federal agency took on HB 2 this week, when the head of the Department of Justice’s Civil Division sent a letter to North Carolina Gov. Pat McCrory stating that the law violates Title VII of the Civil Rights Act of 1964).

The EEOC’s Fact Sheet makes the agency’s stance clear:  transgender employees have the right to a workplace free from discrimination and harassment on the basis of their gender identity.  Supervisory or co-worker confusion or anxiety associated with a transgender employee using the bathroom that corresponds to their gender identity “cannot justify discriminatory terms and conditions of employment.”  As such, employees should be able to use the restroom that corresponds to their gender identity.  Interestingly, EEOC Commissioner Chai Feldblum even tweeted the message:  “Share this! issues fact sheet on bathroom access rights for transgender employees.”  There can be no mistake that transgender bathroom usage is on the EEOC’s radar.