EEOC, DOJ Take Aim at North Carolina’s ‘Bathroom Bill’

Federal law may trump state law

By Allen Smith, J.D. May 5, 2016
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Denying an employee access to a restroom that corresponds to the employee’s gender identity is sex discrimination in violation of Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) stated in a May 2 fact sheet. “Contrary state law is not a defense under Title VII,” the commission noted, a veiled reference to North Carolina’s House Bill 2 (H.B. 2).

And on May 4, the Department of Justice (DOJ) was even blunter, writing to North Carolina Republican Governor Pat McCrory to inform him that H.B. 2 violates Title VII and Title IX. The letter asks the state to respond no later than May 9 about whether it will remedy these violations of the law. 

“If North Carolina does not respond by May 9, 2016 affirming that it will not comply with HB 2, it could face losing federal funding—state public schools receive $861 million in federal funding,” said Todd Solomon, an attorney with McDermott Will and Emery in Chicago.

In addition, “The EEOC’s fact sheet has been issued in direct response to H.B. 2 and other anti-LGBT [lesbian, gay, bisexual and transgender] legislation, such as in Mississippi,” said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

North Carolina’s H.B. 2 provides that transgender individuals are permitted only to use bathrooms that correspond with the gender listed on their birth certificate, Solomon noted. The law affects North Carolina state government employers but does not cover private employers, he added.

Based on the language in the EEOC’s fact sheet, “an employer will have a very difficult, if not impossible, time trying to defend the imposition of restroom usage based on biological sex if a charge is filed with the EEOC on these grounds,” Phillips said.

“Transgender workers don’t stand alone, even when they are in the crosshairs of discrimination,” said Peter Renn, staff attorney with Lambda Legal, which advocates on behalf of LGBT individuals, in Los Angeles. “They have the support of the federal government behind them.”

Lambda Legal and the American Civil Liberties Union (ACLU), an organization that defends civil liberties, have filed a lawsuit challenging the legality of H.B. 2. The lawsuit has been filed on behalf of Joaquin Carcaño, a University of North Carolina (UNC) employee; Payton McGarry, a UNC-Greensboro student; Angela Gilmore, a North Carolina Central University law professor; Hunter Schafer, a student at University of North Carolina School of the Arts High School; and Beverly Newell and Kelly Trent, a married same-sex couple in Charlotte, N.C.

Unlawful Sex Discrimination

The fact sheet is intended to educate people that from the EEOC’s perspective, denying transgender individuals access to common restrooms is unlawful sex discrimination, said Elizabeth Gill, a senior staff attorney with the ACLU’s LGBT and HIV Project in San Francisco, a project that seeks equal expression and association for LGBT individuals.

The EEOC notes in its fact sheet that the commission held in Lusardi v. Dep’t of the Army last year that an employer:

  • Cannot condition a transgender employee’s right to equal access to a common restroom on the employee undergoing or providing proof of surgery or any other medical procedures.
  • Cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead.

The EEOC fact sheet also observes that the 4th U.S. Circuit Court of Appeals reached a similar conclusion in a Title IX case last month. In that case (G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.), the court deferred to the Department of Education’s position that Title IX’s prohibition against sex discrimination requires educational institutions to allow transgender students access to the restroom that is consistent with their gender identity.

“The fact that other employees may be confused, uncomfortable or anxious about the transgender employee’s use of the restroom is not a sufficient basis to prevent the transgender employee’s access to the restroom,” Phillips said. “The timing of the publication of the EEOC fact sheet is not an accident. The EEOC and other federal agencies have clearly signaled their intention to fight LGBT discrimination in the workplace.”

“With its recent lawsuits and fact sheets, the EEOC is reminding states that it can and will prosecute employers that discriminate on the basis of transgender status and sexual orientation,” Solomon said.

Follow Federal Law

“Ultimately, state employers in North Carolina are put in a difficult position where they must determine whether to follow state or federal regulation on this issue,” he remarked. After all, the EEOC’s position has not been extensively tested in the courts. But employers may not want to take the time and expense of fighting the EEOC on this.

Renn asserted that the EEOC’s announcement makes clear that H.B. 2 directly conflicts with, and violates, federal law, in the commission’s view. “Because federal law controls over contrary state authority, employers should follow the EEOC’s guidance for applying Title VII and not H.B. 2,” he said.

 Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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