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Sorting Out the Business of Bathrooms

By May 18, 2016November 28th, 2018Best Practices, Employment Law, Employment News

With all of the discussion about who has the right to use which restroom, I wanted to share legal information from the Equal Employment Opportunity Commission (EEOC). A hot topic in North Carolina right now, this issue is sure to be on the dockets of courthouses in many states very soon.

First, let’s look at what the law says about “transgender.” From the EEOC website:

“Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female.  Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male.  A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.”

Under Title VII of the Civil Rights Act of 1964, which applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees, employers may not discriminate based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation).

In legal cases heard in 2012 and 2015, the EEOC held that employers may not deny an employee “equal access to a common restroom corresponding to the employee’s gender identity” nor may an employer require an employee to provide proof of surgery or any other medical procedure they may be undergoing related to, in this case, gender identity.

Understandably, this issue becomes more complicated by conflicting personal beliefs employees may have. However, the EEOC is clear in pointing out that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

For additional information, please refer to A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) –https://www.osha.gov/Publications/OSHA3795.pdf.

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