The recent media attention on transgender bathroom policies serves as a reminder that employers should update their current policies to comply with new guidance and court decisions addressing gender identity and transgender rights.

In fact, in the midst of all of the debate in North Carolina surrounding its “bathroom bill,” which directs public schools and agencies to require that multiple-occupancy bathrooms and changing facilities be designated for use only by people based on their "biological sex,” the Equal Employment Opportunity Commission (“EEOC”) has put employers on notice of its position that denying an employee access to a restroom corresponding to the employee’s gender identity is sex discrimination in violation of Title VII of the Civil Rights Act (“Title VII”). While the EEOC’s guidance is not the law, it is persuasive authority for the federal courts, and should not be taken lightly.

The EEOC defines “transgender” as “people whose gender identity and/or expression is different from the sex assigned to them at birth.” The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. The EEOC further states that a person need not undergo any medical procedures to be considered transgender.

In Macy v. Department of Justice, the EEOC held that discrimination against a transgender person because of that person’s gender identity is, by definition, discrimination based on sex under Title VII. Specifically, the EEOC held that: (1) denying an employee equal access to a shared restroom corresponding to the employee's gender identity is sex discrimination; (2) an employer cannot condition this right on the employee undergoing or providing proof of a medical procedure; and (3) an employer cannot avoid the requirement to offer equal access to a common restroom by limiting a transgender employee to a single-occupancy restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it). EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012).

Similarly, the Department of Justice (“DOJ”) has publicly adopted the position that Title VII protects employees based on gender identity and recently filed a civil rights lawsuit over North Carolina’s “bathroom bill.” Additionally, in 2015, the Occupational Safety and Health Administration (“OSHA”) issued guidance on restroom access for transgender employees, stating that employers should permit employees to use the restroom that corresponds to their chosen gender identity, or alternatively, offer a single-occupancy unisex restroom.

Beyond the recent bathroom controversy, the EEOC has also found that the intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, and that an employer’s failure to revise its records pursuant to changes in gender identity creates a valid Title VII sex discrimination claim. See Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013) and Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (April 16, 2014).

In 2015, the EEOC received 271 charges related to gender identity or transgender status. As more individuals openly identify as transgender, the EEOC is likely to see an increase in the number of discrimination charges filed. In light of the EEOC’s guidance and previous rulings, employers should consider the following steps to ensure compliance with Title VII with respect to transitioning employees:

  • Update policies relating to nondiscrimination, anti-harassment, and equal employment opportunity to include “gender identity and expression.”
  • Update policies that, inadvertently or intentionally, treat employees differently based on sexual orientation or gender identity.
  • Revise dress codes so that they are gender-neutral.
  • Address the transitioning employee by the name and pronoun that corresponds to his or her gender identity, and make sure all employees do the same. The deliberate refusal to respect an employee’s gender identity may constitute sexual harassment.
  • Permit employees to use the restroom corresponding to their gender identity. If a co-worker is uncomfortable sharing a restroom with a transitioning employee, that co-worker may choose other options, such as a unisex or other restroom.
  • Train managers and employees on nondiscrimination, anti-harassment, and the company’s procedure for reporting complaints.
  • Conduct more targeted trainings on nondiscrimination and anti-harassment, as well as employee privacy issues, when an employee is openly transitioning to a new gender identity.
  • Upon request by the transitioning employee, update the employee’s official record, e-mail address, name plate, etc. to reflect the name and gender change.

In this area of rapidly changing law, it is important that gender-based stereotypes, perceptions, or comfort level not interfere with the ability of any employee to work free from discrimination or harassment. Note that these protections do not require any employee to change their personal opinions, but as the law moves toward greater protection for transgender employees, employers may face legal risks by not proactively instituting new policies.