A year ago the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII outlawed workplace bias based on sexual orientation and transgender status. However, that ruling expressly left open questions on whether employers could segregate bathrooms or dress codes by sex. 

According to guidance issued by the EEOC in June, employers cannot bar workers from bathrooms or locker rooms that correspond to their gender identity. The guidance states: "In other words, if an employer has separate bathrooms, locker rooms or showers for men and women, all men (including transgender men) should be allowed to use the men's facilities and all women (including transgender women) should be allowed to use the women's facilities." 

Editor's Note: This guidance is controversial for several reasons. First, it provides a definitive opinion on an issue left open by the U.S. Supreme Court. Nevertheless, there have been prior Equal Employment Opportunity Commission (EEOC) rulings consistent with the current guides. Another controversial aspect, however, is that the EEOC Commission, which currently has a 3-2 Republican majority, did not vote on the guidance. The guidance was issued solely on the authority of the current Administration's appointed Chair of the EEOC.

This is part of our August 2021 Newsletter.

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