by Ryan Olson
Target recently announced that employees and customers at its stores may use the public restroom that corresponds with their gender identity. Now, amid criticism of its transgender bathroom policy by some customers, the company has said that it will spend $20 million to make single-stall bathrooms available in every store. 
Controversial policy. In an effort to reiterate its inclusive environment and experience, Target announced in April 2016 that its employees and customers may “use the restroom or fitting room facility that corresponds with their gender identity.” Target’s new policy was met with mixed results, however. For example, a conservative Christian organization has collected more than 1.4 million signatures from people promising to boycott Target in response to its restroom policy. Nonetheless, other retailers have echoed Target’s bathroom policy.
Another big announcement. Recently, Target made another announcement: It plans to spend $20 million to add lockable single-stall bathrooms in every one of its stores. Target spokeswoman Katie Boylan noted that 1,400 out of the company’s 1,800 stores are already furnished with single-occupancy bathrooms. The majority of Target’s new single-stall restrooms are set to be completed by the end of the year, with only a handful of the alternations to be completed in early 2017.
Bottom line. While Target’s bathroom policy may be controversial, it does comport with the Equal Employment Opportunity Commission’s (EEOC) recently published fact sheet, in which the agency clarifies its position that “denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.” (The EEOC’s fact sheet is available at https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm).
Although the EEOC’s fact sheet doesn’t have the force of law, it does open the door for employees to file discrimination charges against an employer that enforces a gender-specific bathroom policy. Employers can expect the EEOC to pursue such claims very aggressively to try and prove their point.
Ryan Olson is an attorney with Felhaber Larson, practicing in the firm’s Minneapolis, Minnesota, office. He may be contacted at rolson@felhaber.com.