Many employers and municipalities across the U.S. are considering changes to laws and rules governing access to restroom facilities by transgendered persons. Employers can struggle balancing the interests of transgendered employees who seek to use restrooms consistent with their gender identity, with objections from employees who contend that they are forced to share restrooms with persons of the opposite biological sex. In past years, some employers have devised compromises that allow transgendered persons to use specially designated, non-gender specific restrooms. Earlier this month, the Equal Employment Opportunity Commission indicated that such compromises may not satisfy employers’ obligations under Title VII.

The EEOC serves as the quasi-judicial body that hears cases and makes decisions regarding alleged discrimination against federal workers. In Lusardi v. McHugh, the plaintiff was a pre-operative male-to-female transgendered civilian Army employee. She alleged that the Army required her to use a single-user executive restroom instead of the women’s restroom available to female employees. The EEOC concluded that Title VII generally requires the Army to apply its policies based on the employee’s gender identity. To impose different rules with respect to restroom access would violate Title VII because it is based on stereotypes as to appropriate gender behavior. The EEOC stated that co-worker preferences are not relevant to this determination.

The EEOC has no judicial authority over private sector employers and cannot impose this decision on them. However, the agency’s decision here predicts its enforcement position in the event of a charge of discrimination from a private sector transgendered employee. The decision in this case does not give blanket restroom access to any person who claims a gender identity that differs from their biological sex. However, the EEOC stated that the Army should have conducted a review of the specific circumstances presented in this case instead of imposing different restroom use rules on the plaintiff based on co-worker complaints.