BATHROOM ACCESS RIGHTS FOR TRANSGENDER EMPLOYEES

by Anne Zachritz

I recently discussed two lawsuits filed by the Equal Employment Opportunity Commission (EEOC) in federal courts in Pennsylvania and in Maryland, challenging sexual orientation discrimination.  Although not explicitly prohibited by Title VII of the Civil Rights Act of 1964 (Title VII), the EEOC interprets Title VII to prohibit discrimination based upon sexual orientation and gender identity.  Examples of unlawful sexual discrimination include:  failing to hire an applicant because she is a transgender woman; firing an employee because he is planning or has made a gender transition; harassing an employee because of gender transition, such as intentionally and persistently failing to use the name and gender pronoun that corresponds with the gender identity to which the employee identifies; denying an employee a promotion because he is gay or straight; discriminating in terms, conditions or privileges of employment, such as not providing spousal health insurance benefits to same-sex spouses while providing spousal health coverage to opposite-sex spouses; and harassing or discriminating against an employee because of his or her sexual orientation or gender identity.

As just about everyone who follows the news is aware, states and municipalities have begun to proscribe bathroom use by transgender people.  North Carolina in particular has received significant scrutiny for its“bathroom law” proscribing bathroom access to transgender individuals, which was signed into law by North Carolina’s governor.  After falling under scrutiny by the U.S. Department of Justice (DOJ), on May 9th, North Carolina filed a lawsuit alleging that “transgender status” is not a protected class under Title VII of the Civil Rights Act of 1963 (Title VII).  The DOJ, in turn, filed a lawsuit against North Carolina, claiming that North Carolina’s bathroom bill violates not only Title VII, but also the Title IX Education Acts Amendment and the Violence Against Women Reauthorization Act.  The Fourth Circuit Court of Appeals, to which appeals from North Carolina’s federal courts are taken, has very recently allowed an appeal that a Virginia school discriminated against a transgendered student in violation of Title XI to proceed.   Many of the Fourth Circuit judges were nominated by President Clinton or President Obama.  Stay tuned…

In response to “bathroom bills”, the EEOC last week issued a new fact sheetregarding bathroom access, reminding employers that discrimination against transgendered employees is sex discrimination in violation of Title VII, and reminding employers that reliance on state law explicitly permitting discrimination against LGBT individuals is not a defense to Title VII discrimination claims.  In short, the fact sheet advises employers that denying an employee equal access to a “common sense restroom corresponding to the employee’s gender identity” is unlawful sex discrimination.  An employer cannot condition equal restroom access on the employee either undergoing surgery, or providing proof of surgery, and also cannot avoid the equal restroom access requirement by restricting transgender employees to a single-user restroom instead (although the employer can make a single-user restroom available to all employees who might choose to use it).

According to the EEOC, “supervisory 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.” 

What does this mean for employers?   Employers should be aware of expanding employee protections and ensure that their employment policies comply with the EEOC’s interpretation of Title VII, and remember that reliance on contrary state law does not provide employers a defense against Title VII discrimination claims.

Employers with questions regarding the prevention of workplace discrimination or other employment matters, please contact Anne Zachritz at 272-9241 or aezachritz@andrewsdavis.com.

 


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