The Equal Employment Opportunity Commission has joined in the nationwide discussion on transgender bathroom access.  This issue was recently thrust into the spotlight when North Carolina passed legislation that explicitly restricts restroom choices for transgender individuals.  The backlash from this legislation was considerable, prompting not just the EEOC, but human rights organizations and lawmakers to take action.

The EEOC issued its guide on how Title VII of the Civil Rights Act applies to transgender employees’ use of bathrooms in the workplace on May 2nd.  In its new guide, the EEOC has made it clear that transgender individuals must not face discrimination and harassment in the workplace.  According to the EEOC’s guidance, failing to provide transgender employees with equal access to whichever bathroom corresponds with their gender identity constitutes gender discrimination.

Employers cannot insist that transgender employees provide proof that they have had surgery or other medical procedures before permitting them to use their preferred bathroom.  Transgender employees must not be forced to use single-user bathrooms.  Such bathrooms are permitted, but must not be the only option for transgender employees.  Furthermore, gender-based stereotypes, perceptions, and the comfort level of other employees must not hinder any transgender employees’ freedom from discrimination and harassment in the workplace.

The compliance requirements included in the EEOC’s guide should not be difficult for employers to enact.  Employers’ anti-harassment and anti-discrimination policies that have not been recently updated to reflect the recent guide should be revised to address the bathroom rights of transgender individuals.  It is important that all employees are aware of the newly enacted policies.  Trainings for employees and management should therefore be provided so that all personnel understand the updated anti-harassment and anti-discrimination policies.

In its guide, the EEOC criticizes North Carolina, a state that has passed legislation which limits bathroom choices available to transgender people.  The guide provides that state laws such as the one passed in North Carolina, which are contrary to the EEOC’s guidance, are not a defense under Title VII.  Illinois, South Dakota, Indiana, and Washington have attempted to pass laws that are also inconsistent with the EEOC’s guide.

Various human rights organizations have been pushing for changes to state and local laws through local activity.  These organizations have been successful in their advocacy efforts, prompting legislation in various jurisdictions.  A similar position to that of the EEOC regarding the use of bathrooms has been adopted by several states, cities, and municipalities, such as New Jersey, New York, Washington, D.C., and Dallas, Texas.  Statutes in some of these jurisdictions have expanded on the EEOC’s coverage.  The legislation in several of these localities has actually adopted gender identity as a protected characteristic under their laws.  While the EEOC only covers employers with over 15 employees, several of the statutes enacted have gone further and apply the legislation to smaller businesses, resulting in a more universal application of the regulations.

If you have been forced to use a bathroom not aligned with your gender identity, you may have suffered gender discrimination. If you have been harassed because of your gender identity, you may be able to sue for harassment as well. At Liberty Law, Micha Star Liberty and Seth I. Rosenberg believe that anyone who is discriminated against or harassed because of his or her gender identity should pursue their legal rights under the law. Call the Oakland gender discrimination attorneys at Liberty Law at 510-645-1000 or 415-896-1000. We can help. We work with clients throughout the San Francisco Bay area, including Hayward, Tracy, Fairfield, Berkeley, San Jose, Sacramento, and the surrounding areas. Call us today to schedule a free consultation to learn more about your legal rights.

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