EEOC to Investigate Denial of Gender-Appropriate Restrooms in Private Sector as Sex Discrimination under Title VII Post-Lusardi
After issuing a groundbreaking ruling that denying transgender individuals' access to bathrooms consistent with their identified genders is sex discrimination prohibited by Title VII (Lusardi v. McHugh, EEOC Appeal No. 0120133395 (Apr. 1, 2015)), the EEOC has confirmed that its investigators will rely upon Lusardi when examining claims against private-sector employers and making probable cause determinations.
As we've previously written, in Lusardi the U.S. Army forced Tamara Lusardi, a transgender woman, to use a single-user restroom rather than the women's restroom even though she had begun living and working full-time as a woman. She was told that she would be permitted to use the women's restroom only after proving that she had undergone so-called "final surgery " - a common but misguided, highly offensive, and now illegal policy that would rise to the level of an adverse employment action.
For good reason, counsel for companies across the country have told Bloomberg BNA that Lusardi and recent Commission enforcement activity against the misgendering of transgender employees "should put private sector employers in a compliance mode" and take a "compliance-first" approach.
How should employer adopt best practices with respect to restrooms and locker rooms? The federal government has already issued a formal guidance to ensure that its agencies provide a non-discriminatory workplace to all employees, regardless of their gender identity. Citing new DOL/OSHA guidelines, the U.S. Office of Personnel Management guidance lays out the following principles:
For a transitioning employee, this means that, once he or she has begun working in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to There employees) locker room facilities consistent with his or her gender identity. Transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender.
Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, located at an unreasonable distance from the employee's work station, or that are inconsistent with the employee's gender identity.
To address employers' common practice of "segregating" transgender employees in There facilities head on, the DOL/OSHA guidelines provide the following direction:
[N]o employee should be required to use a segregated facility apart from There employees because of their gender identity or transgender status.
Although not discussed widely in legal circles, DOL/OSHA further acknowledges that employers should also accommodate non-binary transgender employees through gender-inclusive facilities:
The best policies also provide addition al options, which employees may choose, but are not required, to use. These include:
• Single-occupancy gender-neutral (unisex) facilities; and
• Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
Because Lusardi cites the OPM guidance, it is highly likely that EEOC investigations into this type of misgendering in the private sector - requiring employees to use bathrooms or locker rooms that do not correspond to with their gender identity - may adopt this framework.