Transgender Workplace Rights: EEOC Releases Fact Sheet, North Carolina Lawsuits Filed
Author: Marta Moakley, XpertHR Legal Editor
May 11, 2016
Transgender rights in the workplace and beyond continue to garner national attention as some states seek to pass legislation that promotes religious freedom and protects employee privacy, while the federal government asserts the federal Civil Rights Act's supremacy and supports transgender rights.
EEOC Fact Sheet
The EEOC has issued a Fact Sheet on bathroom access rights for transgender employees under Title VII of the Civil Rights Act. The EEOC takes the position that Title VII's prohibition on sex discrimination encompasses pregnancy, gender identity and sexual orientation. The Fact Sheet defines transgender as those whose gender identity and/or expression is different form the sex assigned to them at birth (e.g., the sex listed on an original birth certificate). The Fact Sheet clarifies that an individual need not undergo a medical procedure to be considered a transgender man or woman.
The EEOC has ruled on the following:
- Denying an employee equal access to a common restroom corresponding to the employee's gender identity is discrimination based on sex;
- Conditioning access to restrooms based on the employee undergoing or providing proof of surgery or other medical procedure is prohibited; and
- Restricting a transgender employee to a single-user restroom is prohibited.
The EEOC also refers to the Occupational Safety and Health Administration's Best Practices: A Guide to Restroom Access for Transgender Workers, which emphasizes as its core principle that all "employees, including transgender employees, should have access to restrooms that correspond to their gender identity."
The EEOC Fact Sheet stresses that Title VII takes precedence over any contrary state law, which is becoming a central issue in North Carolina.
Department of Justice and North Carolina Lawsuits
North Carolina has become the focus of the transgender workplace rights debate in the past week.
Last week, the Department of Justice issued a notice to the State of North Carolina, the University of North Carolina (UNC) and the North Carolina Department of Public Safety (DPS) stating that they are in violation of Title VII, in addition to Title IX of the Education Amendments of 1972 and the Violence Against Women Reauthorization Act of 2013 (VAWA), with respect to the state's implementation and enforcement of North Carolina's Public Facilities Privacy and Security Act (House Bill 2).
House Bill 2 requires local boards of education and public agencies to establish single-sex multiple occupancy bathroom and changing facilities based on an individual's biological sex (the sex reflected in a person's birth certificate) and not on an individual's gender identity. While the law allows for accommodations due to special circumstances, it also states that "in no event shall that accommodation result in the public agency allowing a person to use a multiple occupancy bathroom or changing facilities ... for a sex other than the person's biological sex."
In addition, House Bill 2 preempts local and municipal governments from adopting any ordinances expanding an employer's requirements under state law regarding the compensation of employees or employee discrimination protections. This preemption provision blocks a recent Charlotte city ordinance that would have expanded discrimination protections based on sexual orientation and gender identity.
On Monday, North Carolina filed a complaint seeking a declaratory judgment from the court that the state is in compliance with Title VII and VAWA in its enforcement of House Bill 2.
The Department of Justice filed its own complaint that day, which seeks to block the implementation and enforcement of House Bill 2. Attorney General Loretta E. Lynch stated that the lawsuit "is about a great deal more than just bathrooms. . . It's about the founding ideals that have led this country - haltingly but inexorably - in the direction of fairness, inclusion, and equality for all Americans."
Both sides invoke employee privacy as a concern: North Carolina emphasizes public employee privacy, while transgender rights advocates view this as an infringement on the most private of workplace areas for a class of protected individuals.
Existing Case Law
Both the Attorney General and the EEOC Fact Sheet reference the 2016 G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd. ruling by the 4th Circuit Court of Appeals (which covers North Carolina), in which the court deferred to the Department of Education's position that the prohibition against sex discrimination under Title IX requires educational institutions to give a transgender student restroom and locker access consistent with his or her gender identity.
Failure to comply with the law may result in loss of federal funds, mostly in the guise of student loans and grants.
Pending resolution of the lawsuits, an employer should exercise caution in adopting a workplace EEO policy that could be interpreted as violating federal civil rights laws.