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EEOC Fact Sheet on Transgender Bathroom Access: What You Need to Know

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By Christopher Coble, Esq. on May 10, 2016 3:57 PM

Considering the legal kerfuffle and PR nightmare over North Carolina's bathroom bill and federal protections against transgender discrimination, many businesses are wondering how to comply with both state and federal law on transgender bathroom access. Lucky for you, the Equal Employment Opportunity Commission (EEOC) recently released a fact sheet on how business owners can provide access in compliance with Title VII of the Civil Rights Act of 1964.

So here's what small business owners need to know about Title VII, transgender employees, and appropriate bathroom access:

The Basics

Title VII applies to federal, state, and local government employers as well as private businesses with 15 or more employees, and prohibits discrimination based on race, color, national origin, religion, and sex. The EEOC has interpreted Title VII's sex discrimination protections to include pregnancy, sexual orientation, and gender identity, therefore covering transgender employees.

The EEOC's fact sheet defines transgender as referring to "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)" and notes that medical procedures are unnecessary to be considered transgender.

The Facts

In 2015, the EEOC decided a leading case in transgender bathroom access and came up with three major rules:

  1. Denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination;
  2. An employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it); and
  3. An employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure.

The EEOC also identified three other considerations for businesses and schools:

  1. Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7;
  2. Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity; and
  3. 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.

So it doesn't matter why transgender discrimination is happening under EEOC guidelines, it only matters that it does happen. Many schools, businesses, and even states are considering gender-neutral bathrooms as a way to comply with Title VII, and the Occupational Safety and Health Administration (OSHA) also released a Best Practices Guide to Restroom Access for Transgender Workers.

If you have questions about your small businesses bathroom access or would like legal advice in setting up a transgender bathroom access policy, you can contact an experienced employment law attorney.

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