The EEOC recently issued guidance regarding employers’ obligations with respect to transgender employees.
- “Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g., the sex listed on their birth certificates). An individual does not need to undergo any medical procedure to be considered transgender.
- The EEOC considers discrimination on the basis of transgender status to be discrimination in violation of Title VII, and will take enforcement action against employers for violations.
Specifically, the EEOC has found the following to constitute discrimination:
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity;
- Conditioning this right to use a restroom corresponding to the employee’s gender identity on proof of the employee undergoing surgery or any other medical procedure; or 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).
- A contrary state law provides the employer with no defense to an enforcement action.
- The EEOC has further advised that supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on transgender status 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.
Please give the attorneys at BurnsBarton a call to find out how your policies or practices may need to be updated to comply with this guidance.