DOL and EEOC Weigh In On Title VII and Bathroom Restriction Laws

Garrett Wozniak
Garrett Wozniak
05/06/2016

Earlier this week, the Equal Employment Opportunity Commission issued a fact sheet titled “Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.”  Yesterday, the Department of Justice sent a letter to North Carolina’s governor stating that his state’s H.B. 2 — legislation which requires individuals to use public restrooms associated with their gender at birth — violates Title VII of the Civil Rights Act of 1964.

According to the DOJ, North Carolina’s law is “facially discriminatory against transgender employees on the basis of sex.”  The DOJ further stated, “the State is engaging in a pattern or practice of discrimination against transgender state employees and both you, in your official capacity, and the State are engaging in a patter or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.”  The DOJ gave Governor McCrory until May 9 to remedy the violations.

The EEOC’s fact sheet covers much of the same ground as the DOJ’s letter, albeit in a more educational tone.  For instance, the EEOC explains that the term “transgender” refers to an individual whose gender identity and/or gender expression is different from the sex assigned to that person at birth.

Referencing its decisions in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 12, 2012) and Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395 (Mar. 27, 2015), the EEOC reminds employers and employees of its position that discrimination based on transgender status is sex discrimination under Title VII.  In the EEOC’s view, employers:  (1) may not deny an employee equal access to a common restroom corresponding to the employee’s gender identity; (2) an employer cannot condition an employee’s equal access to common restrooms on the employee undergoing or providing proof of surgery or other medical procedure; and (3) an employer cannot avoid the equal access requirement by restricting a transgender employee to a single-user restroom.  Employers may, however, make a single-user restroom available to all employees.
The fact sheet cites the Fourth Circuit’s recent decision in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056 (4th Cir. Apr. 19, 2016), in which the appellate court deferred to the U.S. Department of Education’s view that the prohibition against sex discrimination under Title IX
requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.
The Occupational Safety and Health Administration and the Office of Personnel Management have provided similar guidance:  A Guide to Restroom Access for Transgender Workers and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace.

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