The EEOC has taken this position for a long time. This week the EEOC issued guidance on the bathroom wars. Here’s what the EEOC says:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by 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).

Before this issue entered the public zeitgeist, transgender individuals were using the bathrooms of their sexual identity with no one noticing. The smart employer is not going to be the test case for an EEOC enforcement action. Well-repaired working bathroom stalls should be the only thing employers need to worry about in their workplace bathrooms.