Thursday, May 19, 2016

Transgender Employee Bathroom Use

Ah, the bathroom.  A place of relief and solitude for many, but for the last six weeks, it has been the focus of controversy.  North Carolina now requires that people only use restrooms designated for the gender that appears on their birth certificate. Supporters of this requirement claim that without this restriction, pedophiles and sexual deviants will see public bathrooms as invitations for unlawful behavior.  In response to North Carolina’s HB2, the Department of Justice filed suit against the state, arguing that the legislation violates Title VII of the Civil Rights Act of 1964.  In another development, late last week the Departments of Justice and Education issued a Dear Colleague Letter stating that Title IX requires educational institutions to allow transgender students to use the bathroom that corresponds to their gender identity. 

Any analysis of the impact of North Carolina’s legislation or the federal government’s response requires perspective. Transgender men and women have been using bathrooms that correspond to their gender identity all along.  Each of us has very likely shared a restroom with a transgender individual without being aware of it. And, regardless of legislative requirements, transgender individuals are quite likely to continue using restrooms that correspond to their gender identity; it’s hard to imagine how to effectively enforce requirements like those that have now been adopted in North Carolina. 

Media attention and social perspective aside, it’s important to focus on what the current controversy means for employers. Outside of North Carolina, there will likely be very little impact. If an employer has no policy on transgender use of bathrooms, or has an affirmatively inclusive policy, no action is required.  If, however, an employer has a policy that mirrors North Carolina’s legislation, the federal government’s attention to this issue should be noted.  In particular, employers should take note of Attorney General Loretta Lynch’s comments and the Fact Sheet recently issued by the Equal Employment Opportunity Commission (EEOC).

The Fact Sheet does not provide any groundbreaking pronouncements on sex discrimination under Title VII.  Since 2012, the agency’s position has been that discrimination based on transgender status is unlawful sex discrimination.  In the past two years, the EEOC has initiated significant litigation, arguing in each case that Title VII’s prohibition on sex discrimination includes sexual orientation, gender identity, and transgender status.  While less than half of the states prohibit these forms of discrimination, the EEOC is accepting charges from employees in any state who believe they have been discriminated against by their employer.

North Carolina HB2 supporters assert that the federal government is overreaching. The Departments of Justice and Education and the EEOC argue that they are trying to create an and environment free of discrimination for transgender workers and students.  The EEOC’s Fact Sheet is clear that “these protections do not require any employee to change beliefs.  Rather they seek to ensure appropriate workplace treatment….” In short, the federal government believes that treating transgender men and women differently by designating specific bathrooms for their use, conditioning their use of a bathroom on reviewing their birth certificates, or otherwise interfering in their bathroom use constitutes unlawful discrimination.

There is no doubt that some, in North Carolina and elsewhere, are fearful and confused about the presence of transgender individuals in gender-specific restrooms. In its 2015 decision in Lusardi, the EEOC wrote, “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”  This has been true since anti-discrimination laws were first enacted and applies to discrimination based on every protected class status. The personal beliefs of individual employees cannot dictate how an employer treats applicants or employees protected by Title VII.

This post originally appeared in the ABA for Law Students blog, Before the Bar.

Posted by Kate Bischoff