Last summer, the Occupational Safety and Health Administration (OSHA) released its “Best Practices: A Guide to Restroom Access for Transgender Workers.” In a nutshell, the OSHA publication stated that transgender employees should have access to the restroom that corresponds to their gender identity rather than to their birth gender. 
Presumably in response to laws passed by North Carolina, Mississippi, and a number of cities, the Equal Employment Opportunity Commission (EEOC) recently issued a fact sheet titled “Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” The EEOC’s fact sheet makes a number of statements, including the following:
- Transgender status is protected from employment discrimination by Title VII.
- Transgender status applies to gender identity regardless of whether an individual has undergone any medical procedure.
- According to Title VII, employees have the right to use the restroom corresponding to their gender identity.
- Employers may not require employees to provide proof of surgery or other medical procedures to establish their status or rights as transgender employees.
- Employers cannot restrict transgender employees to a single-user restroom (although they can make a single-user restroom available to all employees who choose to use it).
Here’s a kicker: The EEOC takes the position that complying with a state or city law limiting transgender employees’ restroom options cannot be used by an employer as a defense to a claim that the limitations violate Title VII.
The fact sheet doesn’t limit itself to addressing workplace restroom issues. The EEOC makes the point that an employer may not permit coworkers’ stereotypes, perceptions, or “comfort levels” to generate workplace discrimination or harassment directed toward transgender employees.
EEOC-issued guidelines like this fact sheet don’t have the force of law. However, it provides a very clear indication to employers of how the commission intends to deal with transgender employee questions in the course of investigating charges of employment discrimination.
Charlie Plumb is an attorney with McAfee & Taft, practicing in the firm’s Tulsa, Oklahoma, office. He may be contacted at charlie.plumb@mcafeetaft.com.