On Monday the Equal Employment Opportunity Commission (EEOC) issued a "Fact Sheet” setting forth its position that denying an employee equal access to a common (i.e., multi-user) restroom corresponding to the employee's gender identity is sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Other key components of the EEOC’s position include that:

  • An employer may not condition the right to use a common restroom on the employee undergoing or providing proof of surgery or any other medical procedure.
  • 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. However, the employer can make a single-user restroom available to all employees who might choose to use it without running afoul of Title VII.

The Development of the EEOC’s Position

The U.S. Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989), that discrimination and harassment based on sex stereotyping are prohibited under Title VII. More recently, the EEOC has become increasingly vocal in its view that Title VII’s prohibition on sex discrimination includes discrimination based on LGBT status, and in March filed its first lawsuits against employers for discriminating against employees based on sexual orientation. The Fact Sheet explains the EEOC’s stance as follows: “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort.”

The Fact Sheet states that contrary state laws are not a defense under Title VII, and its issuance is likely a response to recent, controversial laws in North Carolina and Mississippi that limit transgender people’s access to public restrooms. In the latest salvo in this debate, the U.S. Department of Justice yesterday informed the Governor of North Carolina that the state’s law violates Title VII because requiring employees to use the bathroom of their biological sex at birth treats transgender employees differently from other employees.

The Fact Sheet also references the recent decision in G.G. v. Gloucester County School Board, which we previously reported on, in which Fourth Circuit Court of Appeals held that a transgender student could challenge a school board policy that limits bathroom and locker room access based on biological sex. Although that case was decided under Title IX of the Education Amendments Act of 1972 – which prohibits discrimination based on sex – the EEOC notes the similarity between the U.S. Department of Education’s position and its own.

What the EEOC’s Position Means for Employers

While the courts remain divided on the rights of transgender employees and the responsibilities of employers in this regard, the views of the Administration are clear. Employers should review their policies and practices to ensure compliance with applicable federal, state, and local laws. In Illinois, for example, the Illinois Human Rights Act clearly proscribes discrimination based on sexual orientation, which includes gender identity.

In addition, although bathroom and locker room use in schools has garnered the lion’s share of media attention to date, the EEOC’s Fact Sheet is an important reminder that this is not just an issue for schools. Employers should anticipate that they may encounter resistance within their work force to policies in line with what the EEOC recommends, and need to prepare their managers to handle any resulting conflict consistent with the requirements of applicable law. Thus, employers should remind managers that they set the tone in the workplace and should act accordingly. In addition, managers should be reminded that they are required to report allegations of harassment and may not retaliate against employees who make good-faith complaints of harassment due to, among other things, their sexual orientation or gender identity. Partnering with legal counsel will help employers ensure they are being proactive about implementing best practices and complying with applicable laws.