HR Legalist

FLUSHED: The Debate Over Bathroom Access Rights for Transgender Employees Continues

America is currently in the midst of a debate over sex segregated public bathrooms and their impact on the bathroom access rights of transgender individuals. Over the past few years, there’s been a wave of state legislation around the United States requiring that individuals utilize the bathrooms that correspond to the biological sex identified on their birth certificate (“Bathroom Bills”). Bathroom Bills were proposed in Texas, Kentucky, Florida, Minnesota, Missouri, Washington, South Dakota, Virginia, and North Carolina. Although these proposed bills vary widely, the general effect of the bills is to prevent transgender individuals from using public bathrooms that correspond to their gender identity and/or outward gender expression.

Most recently, North Carolina’s bill (House Bill 2, the Public Facilities Privacy & Security Act)—which was signed into law by Governor Pat McCrory on March 23, 2016—has received national attention and has been criticized as anti-LGBTQ legislation. The controversial bill prohibits cities from allowing transgender individuals to use public bathrooms that align with their sex or gender identity. The bill also provides that state laws on non-discrimination preempt any local ordinances, thereby generally restricting cities from passing non-discrimination laws.

In response to the state’s Bathroom Bill, corporations and celebrities have threatened to boycott the state and the federal government has threatened to pull/withhold federal funding to the state. Other corporations, like Target, have taken a public stance on inclusivity and have announced bathroom policies welcoming employees and store customers to use the bathroom and/or fitting room facility that corresponds with their gender identity.

On May 4, 2016, the Justice Department sent a formal letter to Gov. McCrory, summarizing its position on North Carolina’s Bathroom Bill and urging public officials to abandon the bill because it violated Title VII of the Civil Rights Act of 1964 (“Title VII”). On Monday, May 9, 2016, both the U.S. Department of Justice and North Carolina doubled-down on their respective positions by filing dueling federal lawsuits over the legality of the state’s Bathroom Bill.

While the Bathroom Bill debate will play itself out in federal court, the controversy over North Carolina’s Bathroom Bill has a direct impact on employers and the workplace policies and practices of bathroom access for transgender employees. Until recently, there was very little direction given to employers on employees’ bathroom access rights. However, the EEOC has weighed in, providing guidance on the bathroom access rights of transgender employees under Title VII:

1. Discrimination based on an employee’s transgender status constitutes sex discrimination as defined by Title VII and is prohibited.
2. Title VII prohibits gender-based stereotyping.
3. Denying an employee equal access to a common bathroom corresponding to the employee’s gender identity is sex discrimination.

Although Title VII does not expressly include the word “transgender” nor has the Supreme Court ruled on the specific issue of bathroom access rights under federal anti-discrimination laws, the EEOC’s interpretation of the breadth of Title VII’s prohibition on sex discrimination is clear and employers should take note. Even in states or municipalities with contrary legislation, employers who are subject to Title VII (i.e., those employers with 15 or more employees) must comply with the federal law against discrimination. To ensure compliance with the EEOC’s clear position on bathroom access rights, employers should be mindful of the following:

1. Employers cannot require transgender employees to provide proof of surgery or gender reassignment before the employees are permitted to use the bathroom corresponding with their gender identity or expression.
2. If common bathrooms are available (i.e., gender-specific restrooms with multiple stalls or urinals) for non-transgender employees, employers cannot relegate transgender employees to use only a single-user bathroom in lieu of using the common bathroom.
3. Employers can make single-user bathrooms available for all employees and employees (including transgender employees) may choose to use the single-user bathroom.
4. The sentiments, beliefs, confusion, comfort-level and/or anxiety of other employees is not a defense to discrimination nor does it excuse an employer from the obligation of permitting transgender employees access to a common bathroom that corresponds with their gender identity or expression.

While the debate over Bathroom Bills continues, employers should rely on the EEOC’s guidance on bathroom access to ensure compliance with Title VII. To maintain a workplace free of discrimination, employers must flush away notions of gender-stereotypes and provide transgender employees with bathroom access consistent with their gender identity.