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What’s The Deal With Transgender Bathrooms At Work? Help, I Need The Top LGBT Lawyer In Ohio!

On Behalf of | May 25, 2016 | Employment Discrimination, LGBTQ Discrimination |

Best Ohio LGBT Discrimination Attorney Answer: Are transgender employees protected by federal anti-discrimination laws? Can my employer dictate which bathroom transgender employees can use? Can an employer force transgender employees to use single occupancy bathrooms?

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So, several states filed suit against the federal government of transgender bathroom policies today. (See Eleven States Sue Obama Administration Over Transgender Bathroom Policy.)

Perhaps no area of the law is changing as rapidly as lesbian, gay, bisexual, and transsexual (LGBT) employment law. Our employment attorneys frequently write about the evolving landscape of LGBT employment rights (Can I Be Fired For Marrying A Person Of The Same Sex?; Can I Be Fired Because My Boss Doesn’t Think I’m Feminine Enough?; Can My Church Refuse To Hire Gay Cooks?).

Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112 both prohibit employers from refusing to hire, terminating, or otherwise discriminating against an employee or applicant on the basis of that individual’s sex. To date, however, sexual orientation is not a protected class under either Title VII, nor Ohio case law.

Transgender rights in employment law have progressed a little further and faster than gay, bisexual, and lesbian rights. In Macy v. Dep’t of Justice, the Equal Employment Opportunity Commission ruled that intentional discrimination against a transgender employee because of the individual’s gender identity is, by definition, discrimination based on sex and therefore contrary to Title VII.  Macy draws on the Supreme Court’s decision in Price Waterhouse v. Hopkins, which stands for the proposition that treating an employee differently because that employee does not conform to traditional gender norms is unlawful.

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As we blogged about in March, the EEOC has recently filed a number of lawsuits in an effort to keep pushing LGBT employment rights into the 21st century (Can I Be Fired Because I’m Gay Or Lesbian?). Now, in response to discriminatory laws passed by narrow-minded hillbillies in North Carolina and Mississippi, the EEOC has issued a fact sheet titled “Bathroom Access Rights for Transgender Employees Under Title VII.”  In the factsheet, the EEOC states that an employer may not restrict a transgender employee to the bathroom labeled consistently with the employee’s birth gender and an employer may not require transgender employees to use only single occupancy bathrooms.

The factsheet is aimed specifically at bathroom access but also reiterates the EEOC’s general position that transgender is a protected class and discriminating against any employee because of that employee’s gender is contrary to Title VII.

According to the factsheet, the term “transgender” should be applied to any employee whose gender identity or expression differs from the sex assigned to the individual at birth. To qualify for Title VII’s protections, an individual need not undergo any medical procedure. Additionally, while not stated in the factsheet, the EEOC takes the position that a transgender employee does not need to provide proof of a name change. Instead, the EEOC recognizes an employee is transgender as long as he, she, they (or other any other preferred personal pronoun) consistently presents as a gender different from the gender assigned at birth.

The fact sheet goes on to state that gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of a transgender employee to work free from discrimination, including harassment. In short, an employer may not discriminate against a transgender employee simply because other employees are uncomfortable. Importantly, and as a direct rejoinder to North Carolina and Mississippi, the EEOC states that (1) contrary state law is no defense to a Title VII violation and (2) Title VII addresses conduct in the workplace, not personal beliefs.

LGBT rights in the workplace continue to grow and we are definitely headed in the right direction, albeit at perhaps too slow a pace. If you are a gay, lesbian, bi-sexual, transgender, or gender fluid employee and feel that you’ve been discriminated against, the employment discrimination attorneys at Spitz, The Employee’s Law Firm are actively pursuing LGBT claims and would like to hear from you. Even if you are not sure about your discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040.


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