Employment Law Alert – Gender Identity Workplace Implications, and EEOC Poster Penalties
July 15, 2016
Gender Identity Controversy Reaches a Bathroom Near You
As you have probably seen in the news, North Carolina’s controversial House Bill 2, limiting multiple occupancy bathrooms and changing facilities to use only by persons based on their biological sex, has sparked a huge controversy.
In early May, the EEOC issued a fact sheet entitled “Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” According to the EEOC, “transgender refers to the people whose gender identity and/or expression is different from the sex assigned to them at birth.” Here’s what you need to know:
Denial of equal access to a common restroom corresponding to employee’s gender identity is sex discrimination.
An employer cannot avoid providing equal access to common bathrooms by simply restricting a transgender employee to a single-user restroom; however, an employer can make a single-user bathroom available for all employees to use.
No medical procedure is required to be considered transgender.
Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees (although state and local laws on these topics may apply to smaller employers, and local agencies often look to the EEOC for guidance on interpreting local laws).
Title IX requires educational institutions to give transgender students equal access to restrooms and locker areas, consistent with gender identity.
Discrimination based on transgender status is sex discrimination in violation of Title VII, even if motivated by a desire to protect people of a certain gender or accommodate others discomfort.
Contrary state or local law is not a defense under federal Title VII.
Get Your Poster Up—or Pay a Steeper Price
On June 2, 2016 the EEOC increased the civil monetary penalty for violation of the notice-posting requirements in Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Non-Discrimination Act (GINA). The increase is based on periodic inflation adjustments made in accordance with the Consumer Price Index.
The maximum penalty per violation has increased from $210 to $525. The regulation took effect July 5, 2016.
As a reminder: “Every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program must post notices of the pertinent parts of Title VII, ADA, and GINA in prominent, accessible places where notices to employees, applicants, and members are customarily maintained.”
The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.