The EEOC Cares About…Your Bathrooms??

If you learned about the Constitution in any of your American History or Government classes, you may know that federal laws, (and specifically, anti-discrimination laws) usually pre-empt state laws. If you’ve been listening to/reading the news you may have also heard some rumblings from the EEOC about transgender employees’ access bathrooms. You may also have heard of some controversy on this point in North Carolina and other States. Even if you don’t employ anyone in N.C. however, this issue is not confined to that State and is not going away, which is why we need to  get our heads around it.  So let’s do just that, after the jump…

OK,  what is the issue? Three and a half weeks ago, the EEOC posted information on its website regarding its position on issues related to transgender workers. Per the EEOC, the following employment practices violate Title VII of the Civil Rights Act of 1964:

• Failing to hire an applicant because of his or her transgender status;
• Denying an employee equal access to a common restroom that corresponds to his/her gender identity (i.e. requiring an employee to use a separate, single-user or “family” bathroom or one corresponding to the gender indicated on his/her birth certificate);
• Harass an employee because of a gender transition (e.g. intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees).

If that’s not enough indication that the EEOC plans to pursue gender identity discrimination claims under Title VII, the EEOC has achieved at least two settlements of transgender discrimination claims brought under Title VII. If that is still not enough, the EEOC’s issuance of a Fact Sheet, entitled Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, makes it a virtual certainty that transgender employee rights in general and specifically the right to use common restrooms in accordance with their gender identity will remain on the radar screen for the foreseeable future.

We’re not done though.  The EEOC’s actions come less than two months after the North Carolina legislature passed a law blocking local governments from granting civil rights protections to LGBT individuals. Coincidence? I think not. We’re still not done. The North Carolina legislature passed this law on an expedited basis one week before a Charlottesville ordinance allowing transgender individuals to use the public bathroom of their choice was to take effect.  Moreover, the State of North Carolina has sued the federal government, claiming that the federal government has exceeded its authority by issuing and enforcing any such requirements.

By the way, North Carolina is not the only State to attempt such action. The Commonwealth of Virginia, came extremely close to passing legislation that would have prevented transgender individuals from using the bathroom of their choice. It took bi-partisan efforts to narrowly defeat such legislation. Now, whether or not you believe in coincidences, you have to admit the timing of the EEOC’s actions are not a coincidence. Oh, and 11 other states have sued the federal government with respect for telling US pubic schools that they too must let transgender students use the bathroom that corresponds with their gender identity — whether or not it corresponds to the gender of their birth. This lawsuit too alleges that the federal government has exceeded its authority under the United States Constitution.

What does this mean for you employers –whether or not you are located in North Carolina?

The EEOC’s Fact Sheet clearly articulates the EEOC’s position: employers are required under Title VII to provide transgender employees access to bathrooms that corresponds to their gender identity. The EEOC further states in no uncertain terms that “contrary State law is not a defense to Title VII”.  In other words, failure to adhere to this requirement is discrimination. Discrimination allowed under State law still violates federal law and will land employers in hot water with the EEOC should it find out about it.

Now, before we go further, let’s add another wrinkle, just for fun: What if you are also a federal contractor? How much does or should the EEOC’s position matter to you? Probably a lot.  Federal contractors are also subject to Title VII.  Admittedly, Title VII does not specifically prohibit discrimination on the basis of an employee or applicant’s sexual orientation or gender identity. The EEOC however, interprets the prohibition against discrimination “because of sex” as implicitly including these two categories. Unless and until the U.S. Supreme Court decides otherwise, employers with 15 or more employees –including federal contractors will have to accept the EEOC’s position. Practically speaking, it does not matter that the EEOC’s position is not technically law. The EEOC will use its position to pursue these types of discrimination claims. Furthermore, if you are a federal contractor, this last point is a distinction without a difference. Why? President Obama signed Executive Order 13672, on July 21, 2014, thereby extending the protections of E.O 11246 to employees of federal contractors on the basis of sexual orientation and gender identity. If that doesn’t clinch things for you though, the Office of Federal Contract Compliance Programs (OFCCP) almost always follows the EEOC’s positions and practices with respect to anti-discrimination laws. The point is, transgender employee bathroom access is on the EEOC’s (and the OFCCP’s) radar–which means that it’s in your interest to make sure it’s your radar.

OK, that’s all well and good but what’s an employer to do? You can –and should–start with reading the EEOC’s Fact Sheet, which you can find here.  Then what? Follow the federal laws – as interpreted by the EEOC. Now, depending on how your workspace is set up, if you only have separate, single-use bathrooms (rather than common bathrooms for men and women) may have the easiest time and the fewest challenges with regard to this issue. Otherwise, you may need to update your policies and procedures (including anti-discrimination and harassment policies) and provide training, not only to those monitoring and implementing the policies but to all staff.

If you employ people in North Carolina, you are in an unenviable position. Do you choose to violate state or federal law? The EEOC will not be lenient with you for adhering to what it sees as a contrary State law. Hate to say this, and I hate to sound like a broken record…but, if you are in North Carolina, it’s in your best interest to consult with competent employment counsel. In the meantime, stay tuned, because it’s pretty likely this is not the last we will be hearing about access by transgender individuals to the bathroom of their choice.

OK, well perhaps it’s time for a break from bathrooms. Let’s get together again next week, OK? Good talk…

Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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