September 26, 2021

Volume XI, Number 269

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EEOC Issues Guidance Regarding Workplace Restrooms

On the one year anniversary of the Supreme Court’s decision in Bostock v. Clayton County, the EEOC has issued new guidance to clarify whether employers can segregate workplace restrooms by gender or sex. While not law, this guidance instructs employers how the EEOC will handle sex discrimination charges under its purview.

In Bostock, the Court held that the “because of sex” language in Title VII extends protections to sexual orientation and transgender status. However, in the majority opinion, Justice Gorsuch made clear that the Court was not taking a position on the use of “private spaces” and left unresolved the question of whether employers could segregate restrooms by gender or sex.  

The EEOC’s guidance seeks to clarify confusion stemming from the Bostock decision. The new guidance directs employers that they must allow employees to use the bathroom, locker room, and/or shower that corresponds with their gender identity. Employers may not use anxiety, confusion, or discomfort on behalf of other coworkers as grounds to justify discriminatory policies. If an employer has unisex or single-use facilities, then the individuals can continue to use those as they currently do.  The EEOC has also created a consolidated webpage for resources addressing sexual orientation and gender identity. 

Interestingly, the guidance was not issued by the full Commission. Rather, the guidance was issued by the Chair of the EEOC and is considered non-binding guidance at the moment. However, employers should expect that the guidance will likely become binding in July 2022 when President Biden will be able to nominate a Democrat to the Commission, thus tilting the ideological majority of the Commission. The new majority may even expand upon Chair Burrows’ guidance.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 193
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About this Author

Jason Plowman, Polsinelli Law Firm, Kansas City, Labor and Employment Litigation Law Attorney
Counsel

Jason N.W. Plowman’s practice focuses on all facets of employment litigation, including harassment, discrimination, retaliation, and wage and hour matters.  He regularly represents employers before administrative agencies as well as state and federal courts across the country.  Jason also regularly partners with clients to deliver practical solutions regarding federal, state, and local employment laws and regulations.  His experience extends across multiple industries, including:

  • Telecommunications

  • ...

816-360-4192
Associate

Isaac Caverly focuses his practice on a wide variety of employment-related matters. Isaac is committed to understanding the industry in which clients operate and he provides valuable counsel to employers as they face sensitive workplace matters. His experience includes conducting discovery research and drafting memoranda related to employment cases and summary judgements as well as conducting employment due diligence for corporate transactions. Prior to joining Polsinelli, Isaac was a summer associate and served as a congressional intern and served as Co-President of the Iowa Student Bar...

816-218-1210
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