In 2015, the U.S. Equal Employment Opportunity Commission determined that a federal agency that denied an employee equal access to a common bathroom/facility corresponding to the employee’s gender identity discriminated based on sex and could not restrict a transgender employee to a single-user restroom. About five years later, the Supreme Court ruled that discrimination based on transgender status is sex discrimination in violation of Title VII.
Yesterday, the EEOC announced a lawsuit against several employers claiming that forbidding transgender workers from using restrooms consistent with their gender identity contributed to a hostile work environment based on their sex.
There’s more to it than just bathroom restrictions. According to the EEOC press release, two employers subjected a class of transgender employees — two identifying as male and one identifying as female — to “pervasive sexual harassment including repeatedly subjecting the transgender employees to misgendering, graphic sexual comments, unequal access to bathrooms, intrusive questions, and degrading conduct based on gender identity.”
Part of the allegations include claims that supervisors inquired about their genitalia and forbade them from using restrooms consistent with their gender identity. One person, identified in the complaint as “Aggrieved Individual No. 2,” allegedly spoke with her manager about using the women’s bathroom and was told that she may not use the women’s bathroom because she is biologically male.
The Charging Party claims his supervisors told him that he could not use the men’s bathroom because he did not have a penis.
The EEOC pled that Aggrieved Individual No. 1 “felt forced to use the women’s bathroom at Defendants’ workplace because he heard his supervisor’s instructions to the Charging Party, another transgender man, to stay out of the men’s bathroom. But for the supervisor’s refusal to allow the Charging Party to use the men’s bathroom, Aggrieved Individual No. 1 would have used the men’s bathroom.”
The EEOC further claims that the companies retaliated against two of the individuals for complaining about the harassment.
Less than a week ago, I suggested that transgender rights should be part of your anti-harassment training programs. The subtopic should cover misgendering, offensive comments, and, yes, restroom use. Many of you may have strong feelings about who should use what bathroom.
Just know that the EEOC does too, and may come after those who attempt to deny an employee equal access to a common bathroom corresponding to the employee’s gender identity.
If you’re looking for some best practices and a guide to restroom access for transgender workers, try this one from OSHA.