The U.S. Department of Justice sent a letter yesterday to Gov. Pat McCrory, giving him until Monday, May 9, to “confirm” that he does not plan to enforce the “bathroom” provisions of HB 2 as they apply to public agencies. If he fails to confirm, the DOJ is putting him on notice that he and the State of North Carolina are engaged in a “pattern or practice” of discrimination against transgender employees of “public agencies” in violation of Title VII, and plan to “apply to the appropriate court for an order that will ensure compliance with Title VII.”
Earlier this week, the EEOC posted detailed guidelines on LGBT discrimination, including restroom use. The position of the EEOC and the Occupational Safety and Health Administration is that restrooms should be available to employees based on their gender identity, and that employers cannot restrict transgender individuals to single-use restrooms.
It remains to be seen whether a court will agree that limiting employee bathroom use by biological sex (“biological sex,” as defined in HB 2, would be the sex on one’s birth certificate, which apparently can be legally changed) violates Title VII. But the recent decision by two judges of a three-judge panel of the Fourth Circuit in G.G. v. Gloucester County School Board (dealing with a transgender high school student) doesn’t give North Carolina a lot of hope. In any event, I guess we will know soon enough.
NOTE TO PRIVATE SECTOR EMPLOYERS: As I’ve said on this blog many times, you can comply with federal “bathroom” guidelines without being in violation of HB 2. The DOJ letter is directed at “public agencies” as defined in HB 2, not private sector employers.
The DOJ also sent letters yesterday to the University of North Carolina system and to the North Carolina Department of Public Safety, alleging that they are in violation of (as applicable) Title VII, Title IX, and the Violence Against Women Act.