This week the US Equal Employment Opportunity Commission (EEOC) and the US Department of Justice (DOJ) clarified that the Obama administration considers denying equal access to a bathroom corresponding to an individual's gender identity to be "sex" discrimination under both Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Title VII provides federal protection against discrimination in the workplace, while Title IX protects against discrimination in public schools. Neither Title VII nor Title IX currently identify "gender identity" or "gender expression" as a separate protected class and/or category.
The EEOC's policy statement came in the form of a May 3, 2016 "fact sheet", advising employers that unequal bathroom access in the workplace will be treated as a Title VII violation. The EEOC also made clear that reliance on contrary state law will not be a defense.
One day later, on May 4, 2016, the DOJ endorsed the same position in a set of letters sent to North Carolina officials. These letters were sent in response to North Carolina's March 2016 passage of a controversial law blocking cities from allowing transgender individuals to use public bathrooms corresponding to their gender identity. The DOJ demanded a response from North Carolina Governor Pat McCrory by May 9, 2016 as to whether he will remedy the alleged Title VII violations. Governor McCrory has indicated he will not. The DOJ sent a similar letter to the University of North Carolina alleging violations of Title IX, which could result in the withholding of significant funds from the university.
These policy statements by the administration come at a time when the issue of bathroom rights for transgendered persons has become a hot topic of national conversation. Federally, a number of agencies, including the DOJ, US Department of Labor and the US Department of Health and Human Services have endorsed this expansive definition of "sex" under federal law. And in June 2015, the US Department of Labor's Occupational Safety and Health Administration (OSHA) published a "Guide to Restroom Access for Transgender Workers," interpreting OSHA's sanitation standard as requiring all employers under its jurisdiction to provide employees with sanitary and available toilet facilities, including providing transgender employees with access to restrooms that correspond to their gender identity.
States are also debating the issue. In November 2015, Houston voters overturned a nondiscrimination ordinance that would have allowed transgender people to use the bathroom that matched their gender identity. In February 2016, the California Department of Fair Employment and Housing issued a statement that California law requires employers to permit their employees to "use a restroom or locker room that corresponds to the employee's gender identity, regardless of the employee's assigned sex at birth." And seven states are now considering similar laws to that on the books in North Carolina, banning bathroom access based on one's gender identity.
The EEOC and DOJ's policy statements also come on the heels of the EEOC's two historic lawsuits filed in March 2016 that seek to expand the definition of "sex" discrimination under Title VII further to include sexual orientation discrimination. They also come following the Fourth Circuit's April 2016 ruling that a public school's prevention of a transgender student from using the restroom of his gender identity may constitute "sex" discrimination under Title IX.
Now is the time to consider the implications for your workplace and/or educational setting of the state and federal actions in this area. The Dentons Employment and Labor team is available to help you review and audit your current bathroom and locker room policies and practices for compliance, and will monitor these developments as the debate continues.
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