The EEOC has again taken the reins on LGBT rights by issuing some “Bathroom” guidance, giving employers a further strong indication of where the agency is leaning when it comes to enforcement of LGBT rights in the workplace.

In the guidance, the EEOC makes clear again its position that Title VII prohibits discrimination against employees who are transgender – a term the guidance explains covers any person whose “gender identity or expression is different from the sex assigned to them at birth.”

The EEOC highlights the Macy v. Dept of Justice case, (April 2012) when the EEOC first ruled that denying an employee “equal access to a common restroom – corresponding to that employee’s gender identity – is a form of sex discrimination.”

  • The employer cannot condition use of that bathroom on proof that the employee had surgery or a medical procedure.
  • The employer cannot get around this requirement by offering the employee access to a single sex or private bathroom.
  • Also, the guidance expressly states that differences between state and federal law cannot be used as a basis to discriminate against LGBT workers.

In answering the question as to how an employer can “accommodate” the beliefs of other employees, who may not be comfortable with this, the agency is very clear:

“Supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  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”.

What is your takeaway?  This is clearly a priority for the EEOC, and you do not want to get in the agency’s crosshairs on this important issue.

  • You must educate your managers.  Make them aware that the company will not condone poor treatment of gay or lesbian employees, and that they must be sensitive to the needs of transgender employees.
  • If an employee identifies as transgender, make sure that a manager brings this to the attention of senior management and Human Resources, so that the company can consider carefully how it is going to respond.  Enlist outside legal assistance, as needed.  More importantly, open a line of communication with the employee.  No one can offer pat answers as to how to handle this sensitive issue, but having an open dialogue with the employee (and his/her manager) will lead to a better outcome.
  • If an employee is transitioning, again communication with that employee and his/her peers is key.  How does the employee want to announce the transition?  How does the employee want to be addressed?  Will there be a name change?  How should other workers be informed?
  • The EEOC is now crystal clear on this bathroom issue:  the transgender employee must be given access to the restroom of their chosen gender.  It does not matter if there has been surgery.  Again, communication with the employee and candid discussions with other staff will be crucial in getting through this potentially difficult issue.

Most employees today, given our times, are much more open and accepting of colleagues with different lifestyles.   Thus, with some frank discussion and open lines of communication, most will be accepting of LGBT colleagues.  The EEOC and many courts have made clear that employees who are not accepting, under federal law, are engaging in discrimination.  As an employer, a company cannot ‘tolerate’ discrimination against the LGBT community, any more than it would ‘tolerate’ discrimination based on gender or race or any other protected group.


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