EEOC clarifies stance on restroom access for transgender workers

Q&A with Charlie Plumb

published in The Oklahoman | July 15, 2016

Last summer, the Occupational Safety and Health Administration released a publication titled “Best Practices: A Practical Guide to Restroom Access for Transgender Workers,” which recommended that employers provide transgender employees with access to the restroom that corresponds with their gender identity, not birth identity. Earlier this spring, the Equal Employment Opportunity Commission followed up with its own guidance on the topic.

In a Q&A with The Oklahoman, labor and employment lawyer Charlie Plumb explained that while the EEOC’s position on restroom access for transgender employees is the same as OSHA’s, the EEOC’s guidance clarifies that this is a Title VII compliance issue and not merely a health and safety issue.

“The fact sheet makes several things clear: A person’s transgender status is protected from employment discrimination under federal law; transgender status applies to gender identity regardless of whether an individual has undergone medical procedures or treatment; employers may not require an employee to provide proof of surgery or other medical procedure to establish their status or rights as a transgender employee; and employers can’t restrict transgender employees to a single-user restroom, although it can make one available to all employees who wish to use it,” said Plumb.

He added that the EEOC guidance also states that an employer’s compliance with a state or municipal law that restricts restroom access to one’s birth identity cannot be used as a defense to a Title VII claim.