Likely in response to laws recently passed in North Carolina and Mississippi (and being considered in other states, including Ohio), the EEOC has issued a fact sheet regarding bathroom access for transgender employees under federal anti-discrimination law. In the fact sheet, the EEOC takes the position that transgender status is protected under Title VII and, accordingly, employers may not:

• Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination
• Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure
• 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)

In addition, the EEOC takes the position that complying with contrary state law is not a defense. So, for example, an employer who imposes bathroom access as permitted by North Carolina law may find itself in the EEOC’s crosshairs for sex discrimination under federal law.