Following recent news reports about Target’s bathroom controversy and North Carolina’s bathroom law, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet outlining its views on bathroom access rights for transgender employees under Title VII of the Civil Rights Act. You can view the Fact Sheet here.
According to the EEOC, Title VII’s prohibition on sex discrimination also prohibits discrimination based on gender identity and sexual orientation. Consequently, denying a transgender employee access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination. An employer cannot require an employee to provide proof of surgery or any other medical procedure in order to use a particular restroom. Nor can an employer avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom (although an employer can make a single-user restroom available to all employees who choose to use it). The hostility or discomfort of other employees cannot overcome the right of a transgender employee to use the restroom corresponding with his or her gender identity. Moreover, contrary state law is no defense. Sorry, North Carolina.