EEOC & OSHA on transgender bathrooms access

EEOC's Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964 and OSHA's A Guide to Restroom Access for Transgender Workers both state quite a simple proposition: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity. The EEOC has made rulings in federal sector cases holding that:

  • denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

The EEOC fact sheet also makes these points:

  • Contrary state law is not a defense under Title VII.
  • Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort.
  • Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.