Tuesday, May 3, 2016

EEOC issues transgender employee fact sheet

Yesterday, the EEOC issued a new fact sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. The conclusions are nothing new, and match the agency's recent decisions in Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012) and Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015):
Not official use.
  • denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination; 
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and, 
  • 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).
The fact sheet also notes a recent Title IX decision from the Fourth Circuit: 
G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., -- F.3d --, 2016 WL 1567467 (4th Cir. 2016). The Court relied on Department of Education guidance to conclude that "Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity."

Is that the final word? Not by a long shot. The Fourth Circuit decision may be appealed (en banc or to SCOTUS); other courts in other circuits may rule differently; and even courts in the Fourth Circuit may find some way to distinguish Title VII from Title IX. We'll see how this plays out. If you're an employer and you don't want to be the test case though, then follow the fact sheet.