New EEOC Guidance on Workplace Bathroom Access Rights

August 18, 2016 | Lindsey Vaught

Lindsey Vaught, Attorney, Ahlers & Cooney

On May 2, 2016, the EEOC issued a Fact Sheet entitled "Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964."  Title VII is a federal law prohibiting discrimination in the workplace based on race, color, national origin, religion, and sex.  Dating back to a 2012 case, the EEOC has interpreted Title VII's prohibition on sex discrimination to include discrimination based on transgender status, or gender identity.

For specific employment-related practices, the EEOC Fact Sheet highlights the following recent EEOC holdings on transgender employees:

  • denying a transgender employee equal access to common bathrooms corresponding to the employee's gender identity is a form of sex discrimination under Title VII;
  • a transgender employee's bathroom access rights cannot be conditioned upon the employee undergoing surgery or providing any proof of a medical procedure; and
  • employers cannot require transgender employees to use a single-user bathroom, rather than a common use or communal bathroom.  The Fact Sheet notes employers can make single-user bathrooms equally available to all employees.

In Iowa, the federal and state laws are aligned -- the Iowa Civil Rights Act ("ICRA") added gender identity to its list of protected classes in 2008.  Therefore, a claim of discrimination based on an employee's transgender status would fall under the protected class of "gender identity" under the ICRA and "sex" under Title VII.

The Fact Sheet advises "[g]ender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment."  It also notes these employment protections "address conduct in the workplace, not personal beliefs."

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