Why it matters

Last week, the Equal Employment Opportunity Commission (EEOC) published a fact sheet reiterating its position related to the issue of transgender bathroom use, reiterating its position that any such discrimination is a violation of Title VII. The issue of bathroom use by transgender individuals has been in the headlines after the state of North Carolina enacted a law limiting access to public restrooms for transgender individuals, requiring people to use the bathroom correlating to their sex assigned at birth. After sending a warning letter, the Department of Justice (DOJ) filed suit against the state, which responded with its own lawsuit against the federal government. The EEOC's fact sheet, published last week, reiterates the agency's position that discrimination based on a person's transgender status constitutes sex discrimination under Title VII and that the denial of equal access to a bathroom corresponding to the employee's gender identity qualifies as sex discrimination. State or local laws to the contrary are not a defense to liability under the statute, the EEOC added. "Gender-based stereotypes, perceptions or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment," the agency wrote.

Detailed discussion

The state of North Carolina has become a lightning rod for a national debate over the use of bathrooms by transgender individuals. Earlier this year, the city of Charlotte adopted an ordinance prohibiting discrimination against gay or transgender people and specifically allowing individuals to use bathrooms and locker rooms that conform to their gender identity.

In a one-day special session, the state legislature responded by enacting House Bill 2, the Public Facilities Privacy and Security Act, restricting access to restrooms and locker rooms based on an individual's sex assigned at birth. Governor Patrick L. McCrory signed the bill into law, which took immediate effect March 23.

Federal agencies made their positions known immediately. The Department of Justice (DOJ) sent a letter to Gov. McCrory, explaining that HB 2 violated both Title VII of the Civil Rights Act as well as Title IX of the Education Amendments of 1972, and giving the state a deadline of May 9 to confirm it did not plan to implement or enforce the law.

Defying the warning, Gov. McCrory filed suit against the DOJ in North Carolina federal court, seeking a declaration that the state is not violating any federal law by following HB 2, characterizing the agency's position as "a baseless and blatant overreach." A few hours later, the DOJ filed its own lawsuit, arguing that HB 2 "constitutes a pattern or practice of employment discrimination on the basis of sex in violation of" Title VII, Title IX, and the Violence Against Women Reauthorization Act, placing federal funding for the state on the line.

While the battle over the North Carolina law plays out in the courtroom, employers seeking to avoid litigation should consider not only the DOJ's position but also a new fact sheet from the Equal Employment Opportunity Commission (EEOC) on the issue. Defining the term "transgender" as "people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate)," the fact sheet stated that a medical procedure is not necessary for a person to be considered transgendered.

Discrimination based on transgender status is sex discrimination in violation of Title VII, which applies to all federal, state, and local government agencies, as well as private employers with 15 or more workers, the agency explained, citing a decision by the Commission from 2012. Last year, the Commission built upon the 2012 decision in Lusardi v. Department of the Army, when the EEOC held that "denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination," according to the fact sheet, and "an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure."

Further, employers cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead, the agency said, although the employer can make a single-user restroom available to all employees who might choose to use it.

Importantly, the EEOC added that any state law to the contrary is not a defense under Title VII. For support, the agency referenced a recent ruling from the Fourth Circuit Court of Appeals "deferring 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 access consistent with their gender identity."

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment, the EEOC emphasized. Quoting the Commission in the Lusardi decision, "[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. 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."

To read the complaint in McCrory v. United States, click here.

To read the complaint in United States v. North Carolina, click here.

To read the EEOC's fact sheet, click here.