EEO Compliance Dispatch

On February 26, the Equal Employment Opportunity Commission ruled that Title VII of the Civil Rights Act permits federal agencies to maintain single-sex bathrooms and similar intimate spaces and to exclude transgender employees from opposite-sex facilities. In an accompanying press release, EEOC Chair Andrea Lucas restated the majority’s view, declaring that “Biology is not bigotry.”

Although the EEOC’s decision is limited to federal agencies, its interpretation of Title VII also governs workplace discrimination for private employers. Thus, the decision has implications for private employers and reflects the current EEOC’s view of Title VII and how the agency investigates, conciliates, and litigates charges involving workplace facility access.

Background

A biological male civilian employee who identified as female was denied access to female-designated restrooms and locker rooms at Fort Riley, Kansas, after informing management of her gender transition. The Army denied access based on Executive Order 14168, issued by President Trump, which established a federal policy of recognizing only biological sex rather than gender identity.

The employee filed a complaint alleging sex discrimination under Title VII. The Army dismissed the complaint, and the employee appealed to the EEOC. The Commission affirmed the dismissal.

The EEOC’s decision

A 2-1 majority of the EEOC Commissioners, split along party lines, found that maintaining sex-segregated facilities and requiring employees to use facilities corresponding to biological sex was “equal treatment” rather than unlawful disparate treatment.

The majority, consisting of Republicans Lucas and Brittany Bull Panuccio, made several key conclusions:

“Sex” means biological sex. The Commission defined “sex” under Title VII as an individual’s immutable biological classification as male or female, which is consistent with both E.O. 14168 and the original meaning of Title VII at the time of its enactment in 1964.

The Bostock decision is not applicable. The Commission acknowledged the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination encompasses sexual orientation and gender identity. However, the Commission emphasized that the majority in Bostock expressly declined to address access to bathrooms, locker rooms, or similar facilities.

Men and women are not similarly situated. The EEOC concluded that “men and women are not similarly situated” with respect to bathrooms and other intimate spaces because of “innate physical characteristics” and associated “privacy interests.” Therefore, maintaining sex-segregated facilities does not constitute disparate treatment in violation of Title VII. The EEOC also cited longstanding judicial recognition of privacy interests in intimate spaces, concluding that both men and women possess vital interests in using such facilities outside the presence of the opposite sex.

Overruling of Lusardi

The EEOC decision effectively overrules the Commission’s 2015 ruling in Lusardi v. Department of the Army, which held that it was unlawful to deny transgender employees access to bathrooms consistent with their gender identity.

Commissioner Kotagal’s statement

Commissioner Kalpana Kotagal, the lone Democrat on the EEOC, dissented, arguing that the majority’s decision “rest[ed] on the false premise that transgender workers are not worthy of the agency’s protection . . . and suggest[ed] that transgender people do not exist.” In addition to departing from the Commission’s longstanding position in Lusardi, she contended that the majority misread Bostock and failed to account for the practical and legal consequences of denying transgender workers restroom access consistent with their gender identity. She further contended that the decision exposed federal agencies to the risk of litigation and transgender workers to the risk of harassment.

Recommendations for private-sector employers

The EEOC’s decision does not apply to employers in the private sector, nor is it binding on the federal courts. However, the EEOC’s interpretation signals how the EEOC is likely to analyze facility-access disputes and related Title VII issues involving private-sector employers.

We recommend that private-sector employers take the following steps:

Conduct a jurisdictional analysis. Employers operating in multiple jurisdictions should determine the non-discrimination requirements that apply to each location. Policy decisions that are permissible in one jurisdiction may be unlawful in another. Some states have explicit statewide protections for transgender employees, including California, Colorado, Illinois, New York, and Washington.

Because the EEOC decision does not alter existing obligations, private-sector employers should continue to follow applicable state and local laws. This may require allowing employees to use facilities consistent with their gender identity regardless of the EEOC’s position. California’s Civil Rights Department, for example, specifically states that employers must allow transgender employees to use restroom, shower, locker-room, and similar facilities that correspond with their gender identity.

Notably, the EEOC has not said that employers are prohibited from allowing employees to use facilities that correspond with their gender identity.

Consider offering gender-neutral alternatives. Many employers have found that offering single-occupancy or gender-neutral restrooms reduces workplace friction and potential legal exposure.

Train managers and Human Resources. Ensure that supervisors and HR representatives understand the employer’s policies, the applicable law, and the importance of treating all employees with dignity and respect. Improper or insensitive enforcement of facility access policies can generate harassment claims independent of the underlying policy’s legality.

Monitor legal developments. This area of the law remains in flux. The EEOC’s decision is likely to be tested in litigation, and further executive or legislative action is possible. Employers should monitor developments at the federal, state, and local levels and be prepared to adjust policies as needed.

Conclusion

The EEOC’s decision is significant for federal employees, but its importance for private employers lies primarily in what it signals about the Commission’s current interpretive and enforcement posture. Private employers should read the decision as an important development, but not as a legal “safe harbor.”

For more information regarding employer guidance on EEO issues, please contact a member of Constangy’s EEO/Contractor Compliance, Reporting & Analytics Practice Group.