You cannot turn on the news or read social media without this issue coming up. It has become quite political. This article is not. Practically speaking, as an employer it is your responsibility to know and assess the laws that apply to your business and to be aware of the stance being taken by the agencies that enforce those laws.

Last August, we told you about OSHA’s guidance (“OSHA Issues Guidance on Transgender Employees and Workplace Restrooms“). Now, the EEOC has weighed in with its Fact Sheet. As you know, the EEOC processes claims of discrimination brought by individuals against private employers of 15 or more employees (generally speaking). In the Fact Sheet, the EEOC notes it will process claims of sex discrimination to include pregnancy, gender identity, and sexual orientation.

Specifically to the issue of a transgender employee’s access to a common bathroom, the Fact Sheet reminds employers of an early ruling by the EEOC that:

• “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”
• “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 EEOC is clear; it will not accept as a defense the fact that there exists a contrary state law. In other words, regardless of a specific state’s position on this issue, employees can bring claims of discrimination to the EEOC on this basis, and those claims will be processed by the EEOC. The EEOC stresses its position is “to ensure appropriate workplace treatment so that all employee may perform their jobs free from discrimination.”

As you know, employees must present claims of sex discrimination through the EEOC in order to bring a lawsuit in federal court. Once they have gone through the EEOC process, three things could happen: (i) the case could simply go away, (ii) the person could sue in state or federal court, or (iii) the EEOC could bring a lawsuit in federal court on behalf of the person.

Our advice – be prepared. You may go the rest of your career and never face this issue, or you may face this issue tomorrow. Read the guidance and be ready to thoughtfully respond to the employee who raises the issue and to the other employees who may raise questions about your decisions (it is best if decisions are not the subject of public knowledge, but be prepared anyway). Being ready to address these issues will help you avoid having to address complaints before the EEOC or other governmental agencies.

By Kristen L. Brightmire, KBrightmire@dsda.com