New York Employment Law Blog

Tuesday, May 31, 2016

Restroom Access Rights for Transgender Employees

What can you do if your employer does not allow you to use the restroom because you are transgender?

What was until recently a basic, taken-for-granted act – walking into and using a restroom at your place of work – has turned into a national controversy fuelled by emotion and prejudice but very recently calmed by the intervention of the federal government and the application of the rule of law.

As a transgender person, you need to know that restricting a transgender employee’s access to restrooms that is not consistent with the employee’s gender identity constitutes unlawful sex discrimination. The ruling is contained in a Fact Sheet recently issued by the U.S. Equal Employment Opportunity Commission (EEOC). It is based on Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color and sex (including pregnancy, gender identity and sexual orientation).

In clear language, the Fact Sheet states that, “Gender-based stereotypes, perceptions or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

According to the Fact Sheet, a transgender person is one whose gender identity and/or gender expression is different from the sex assigned to him or her at birth. A person does not need to undergo and surgery or other medical procedures to be considered a transgender individual.

Yet despite the efforts of the EEOC, only 18 states have workplace laws that protect employees on the basis of gender identity. And, as the situation in North Carolina demonstrates, some states and institutions are digging in their heels and refusing to recognize what is and should be enforced as a universal right.

Yale Pollack has been educating employees in the New York area about their rights in the workplace and their options to see that those rights are respected. 

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