EEOC Issues Fact Sheet Reminding Employers Not to Discriminate Restroom Use Based on Gender

Posted by on May 31, 2016 in Gender Discrimination, Sexual Orientation Discrimination

-Scott D. Salmon, Esq. and Susan L. Swatski, Esq.

North Carolina (as well as other states) has become infamous for HB-2, a law that restricts restroom use in government buildings based on the gender listed on an individual’s birth certificate, and which is directed towards transgender individuals. The law additionally prohibits municipalities from enacting anti-discrimination laws of their own.

The reaction to HB-2 has been swift and furious. PayPal and Deutsche Bank, among other businesses, are halting planned expansions into the state, and multiple cities and states across the country have implemented travel bans for government employees going to North Carolina. The National Basketball Association (“NBA”) said it will change the location of the 2017 All-Star Game if the law does not change, and a significant number of filming projects and entertainers are refusing to perform in North Carolina, which has led some experts to conclude that North Carolina will lose $77 million in revenue as a result of HB-2. Additionally, the American Civil Liberties Union filed a federal lawsuit challenging the law; the case is captioned, Carcaño v. McCrory and is pending in the U.S. District Court for the Middle District of North Carolina. Also, the United States Department of Justice and the State of North Carolina are currently in litigation over whether HB-2 violates Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972.

In response to HB-2 and similar laws in other states, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet to remind employers that discrimination based on transgender status is sexual discrimination under Title VII of the Civil Rights Act. The EEOC’s fact sheet also reminded employers that HB-2, and other similar state laws, is not a defense to any action brought under federal laws. The EEOC’s fact sheet goes on to state, based on multiple rulings:

  1. denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sexual discrimination;
  2. an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  3. an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom.

In addition, the EEOC fact sheet warns that “gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

While employers everywhere should be mindful of the EEOC’s position on this matter, it is especially important for those in states subject to laws such as HB-2, as contrary state law is not a defense against potential litigation given the federal statutes. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Pennsylvania Civil Rights Laws Still Does Not Protect Against Discrimination Based on Sexual Orientation

Posted by on Jun 10, 2009 in Gender Discrimination, Sexual Orientation Discrimination

By: Tiffanie Benfer, Esq.
While other states are raising the bar on equality and recognizing marriages of same-sex couples, Pennsylvania still fails to provide basic equal right to approximately a million Pennsylvanians.
Pennsylvania civil rights laws provide no protection to Lesbian, Gay, Bi-Sexual, and Transgender people (LGBT). The Pennsylvania Human Relations Act (PHRA), provides protection against discrimination in housing, employment, and public accommodations on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and use of a guide dog, but completely fails to provide any protection for sexual orientation, gender identity, or gender expression.

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We're Still Not There on Gay Rights

Posted by on Jan 15, 2009 in People In the News, Sexual Orientation Discrimination

By: Tiffanie Benfer, Esq.
If you have time to escape to the movies this weekend, I recommend: “Milk.” Sean Penn was terrific. Do we think that Harvey Milk would be pleased with the progress we’ve made on civil rights protection for gays? Probably not.
Thirty years after Harvey Milk’s assassination, bigotry and discrimination against gays and lesbians remains socially acceptable in too many circles and legal in too many states.

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We’re Still Not There on Gay Rights

Posted by on Jan 15, 2009 in People In the News, Sexual Orientation Discrimination

By: Tiffanie Benfer, Esq.
If you have time to escape to the movies this weekend, I recommend: “Milk.” Sean Penn was terrific. Do we think that Harvey Milk would be pleased with the progress we’ve made on civil rights protection for gays? Probably not.
Thirty years after Harvey Milk’s assassination, bigotry and discrimination against gays and lesbians remains socially acceptable in too many circles and legal in too many states.

Read More