Last summer the Occupational Safety and Health Administration (OSHA) released its “Best Practices: A Guide to Restroom Access for Transgender Workers.” In a nutshell, the OSHA publication stated that transgender employees should have access to the restroom that corresponds to their gender identity, rather than their birth gender. Presumably in response to laws passed by North Carolina, Mississippi and a number of cities, the Equal Employment Opportunity Commission (EEOC) recently issued a Fact Sheet entitled “Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” The EEOC’s Fact Sheet makes a number of statements, including:

• Transgender status is protected from employment discrimination by Title VII.
• Transgender status applies to gender identity regardless of whether an individual has undergone any medical procedure.
• According to Title VII, an employee has the right to use the restroom corresponding to their gender identity.
• An employer may not require an employee to provide proof of surgery or other medical procedure to establish their status or rights as a transgender employee.
• An employer cannot restrict transgender employees to a single-user restroom instead (although the employer can make a single-user restroom available to all employees who may choose to use it).

Here’s a kicker: the EEOC takes the position that complying with a state or city law limiting transgender employees’ restroom options cannot be used by the employer as a defense to a claim the limitations violate Title VII.

The Fact Sheet does not limit itself to addressing workplace restroom issues. The EEOC makes the point that co-employees’ stereotypes, perceptions or “comfort levels” may not be permitted by the employer to generate workplace discrimination or harassment directed towards transgender employees.

EEOC-issued guidelines like this Fact Sheet do not have the force of law. However, it provides a very clear indication to employers how the Commission intends to deal with transgender employee questions in the course of investigating charges of employment discrimination.