Employees have the right to equal access to workplace restrooms that are consistent with their gender identity, according to a groundbreaking ruling by the U.S. Equal Employment Opportunity Commission (EEOC). The April 1, 2015, decision came from Lusardi v. McHugh where the EEOC held that denying the use of restrooms consistent with an employee’s gender because they are transgender is a form of gender-based discrimination, which violates Title VII, the federal law prohibiting sex discrimination in employment.
In this precedent-setting decision, the EEOC found that the Army discriminated against a transgender civilian employee by denying her access to the women’s restroom and creating a hostile work environment by allowing a supervisor to intentionally and repeatedly refer to her using male pronouns and her former male name. To learn more about this case, click here.
This was the first such judgment by the EEOC; however, this case builds upon the 2012 case of Macy v. Holder, a ruling that Title VII protects transgender employees from discrimination. To learn more about Macy v. Holder, click here. The Lusardi case is noteworthy in particular because the EEOC provided clear guidance that intentional misuse of gender pronouns and denying restroom access based upon gender identity both constitute harassment, and are unlawful under Title VII. This means that if an employee feels they have been discriminated against by deliberate misuse of pronouns, being referred to by a previous name, or denied appropriate restroom access, they can file a complaint to the EEOC. The employer can expect that the complaint will be investigated and possibly found to be a violation of Title VII and subject to damages.
Employers are legally required to provide employees with reasonable access to restroom facilities under the U.S. Occupational Safety and Health Administration (OSHA), and cannot place unreasonable restrictions on the use of these restrooms.
This EEOC decision has set a precedent regarding transgender individuals and will impact the courts in future discrimination claims. Additionally, over the past few years, there has been much legislative activity, both state and local, about transgender status as a protected class under civil rights law, so this is certainly a topic in the spotlight that employers should be aware of. The key point for employers is that you cannot require a transgender employee to use a segregated restroom, and should support the employee’s use of the restroom of the gender they identify with. Although the federal courts have yet to weigh in, we recommend that private-sector employers follow the EEOC’s position on transgender restrooms in the workplace.