The Equal Employment Opportunity Commission (EEOC) has just issued a new fact sheet on transgender rights that they hope will flush the discrimination v. privacy debate down the drain.
Entitled “Bathroom Access Rights for Transgender Employees Under Title VII”, the Fact Sheet first restates EEOC’s position adopted in their ruling in Macy v. Holder that discrimination based on transgender status violates Title VII’s prohibition against sex discrimination. It then cites their decision in Lusardi v. Dept. of Army that announced the following three principles:
– 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 publication of the Fact Sheet appears to be EEOC’s effort to preempt different viewpoints that might lead to workplace conflict. In this regard, the Fact Sheet explicitly states that employees should be able to use the bathroom that conforms with their own gender identity, and “[g]ender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”
Finally, should a state seek to legislate a different conclusion, as North Carolina did recently, the Fact Sheet pointedly warns that “[c]ontrary state law is not a defense” to complying with Title VII.
But What Does the Law Say?
Remember, EEOC’s pronouncements do not have the force of law; they are merely expressions of intent from the government agency responsible for administering a particular statute. Still, any employer following a different path can anticipate an eventual battle with EEOC, who is not at all reluctant to go to extreme lengths merely to prove their point.
EEOC’s position on this issue seems to draw support from the general view of the rights of transgender individuals in federal and state discrimination law. Although Title VII does not expressly address transgender status, courts applying its ban on sex discrimination are increasingly agreeing with the EEOC in ruling that discrimination based on transgender status violates Title VII because it is based on perceptions of how men or women should behave.
The Minnesota Human Rights Act, our state equivalent to Title VII, goes even further in setting forth an explicit ban on sexual orientation discrimination. The term “sexual orientation” is defined to include persons “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”
Bottom Line:
The current trend in both the courts and governmental agencies is to interpret laws banning sex discrimination to include protections for transgender people. The EEOC’s Fact Sheet makes their position very clear, and we can be very certain that EEOC will be aggressive in enforcing their opinion whenever the opportunity arises.