On May 2, 2016, the U.S. Equal Employment Opportunity Commission issued a new “Fact Sheet” on bathroom access rights for transgender employees. The agency warned employers that discrimination based on an employee’s transgender status is sex discrimination under federal law. The Fact Sheet reflects the EEOC’s position that employers are prohibited from preventing an employee from using a bathroom corresponding to the employee’s gender identity. The Fact Sheet further reflects the EEOC’s position that an employer may not condition the right to use a restroom corresponding to the employee’s gender identity on the employee undergoing, or providing proof of, surgery or any other medical procedure to demonstrate the employee’s gender. The EEOC also takes the position that an employer cannot restrict a transgender employee to a single-user bathroom unless the employer makes a single-user restroom available to all employees who might choose to use it.
While the EEOC’s Fact Sheet is not the law, it does provide employers with the EEOC’s position on this issue. As such, employers should be mindful when making decisions regarding use of restrooms and locker rooms.