June 2016
Discrimination against transgender individuals in their
workplaces, as well as in the public, is an issue many companies are currently
dealing with. Especially with the issue
of bathroom access, many employers struggle to balance the privacy concerns of cisgender
employees, some of whom may be wary about sharing restrooms, with the rights of
transgender employees, for whom using a restroom that conforms with their
gender identity is an important aspect of their transition. Although Title VII of the Civil Rights Act of
1964 does not explicitly outlaw discrimination on the basis of gender identity,
both the EEOC and the Department of Justice have taken the position that companies
and laws that restrict transgender individuals’ access to public restrooms such
as North Carolina’s controversial bathroom law, violate the law. North Carolina and the Department of Justice
have both filed federal lawsuits to determine whether the law is discriminatory.
The EEOC has been actively seeking to protect lesbian, gay,
bisexual, and transgender employees under federal anti-discrimination law’s sex
discrimination provisions, as part of the its 2013-2016 Strategic Enforcement
Plan. Recent actions include extracting
a $140,000 settlement from a Minnesota employer for allegedly complying with a
client’s request to remove an employee from the client’s account on the basis
of the employee’s gender identity, as well as publishing a new fact
sheet reminding employers of its position that it is a form of sex discrimination
to deny an employee equal access to a common restroom corresponding to the
employee’s gender identity, under Title VII.
The fact sheet clarifies that a person does not need to
undergo any sort of medical procedure in order to be considered a transgender
man or a transgender woman. It also
explicitly states that contrary state law, such as North Carolina’s bathroom
law, will not be a defense to a discrimination case under Title VII. The Minnesota Supreme Court has previously
held in Goins v. West Group that the
Minnesota Human Rights Act—which specifically prohibits discrimination on the
basis of “having or being perceived as having a self-image or identity not
traditionally associated with one’s biological maleness or femaleness”—does not
require or prohibit restroom designation according to self-image of
gender. However, the legal landscape has
changed considerably since the Goins
decision, and employers wishing to avoid the wrath of the EEOC are well advised
to allow employees to use the facilities that correspond with their gender
identity. The EEOC would not find it
acceptable for employers to restrict transgender employees to a
single-occupancy restroom instead of common restrooms available to other
employees, but an employer may certainly provide a single-occupancy restroom
for any employee who might choose to use it.
For assistance in dealing with this emerging area of
workplace law, contact James B. Sherman at jasherman@wesselssherman.com or by phone at 952-746-1700.
