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Equal Employment Opportunity Commission
EEOC Fact Sheet on Transgender Employee Bathroom Access

In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.

 
How to Respond to an EEOC Charge

For the first time ever, the Equal Employment Opportunity Commission (“EEOC”) has issued a memorandum on “how Respondents can draft effective position statements.”

guidance

Oftentimes, employers who receive a charge of discrimination from the EEOC will hire an attorney to draft a position statement in response to the charge.  The attorney will normally work with the employer to gather a set of facts to be used in response to the allegations contained in the charge of discrimination, and then prepare a position statement that summarizes those facts (oftentimes refuting the allegations contained in the charge) and discusses those facts in light of the law.  The position statement should be carefully drafted to ensure that all allegations raised in a charge of discrimination are addressed, and that the employer provides a fact-based response instead of one that simply raises conclusive statements such as “we didn’t discriminate.”

Regardless of whether you hire an attorney or prepare the position statement yourself, it is strongly advised to review the EEOC’s memorandum on what constitutes an effective position statement.  The EEOC’s memorandum addresses the following issues:

  • The importance of fact-based position statements
  • Examples of supporting documentary evidence
  • Segregating confidential information
  • Providing a response by the due date
  • Requesting an extension
  • Uploading the Position Statement into the EEOC’s portal

The EEOC’s memorandum can be viewed here:  EEOC on Effective Position Statements

 
Disparate Impact Claim Based On Application, In Addition To Adoption, Of Unlawful Practice

In a decision issued on May 24, 2010, the United States Supreme Court ruled that the statute of limitations for a claim based on disparate impact discrimination begins to run on the date that an unlawful practice is applied, in addition to day it was adopted.

Specifically, in Lewis v. City of Chicago, the City of Chicago gave a written examination to applicants seeking a firefighter position.  The City graded the examinations out of 100 points, and announced that it would randomly draw candidates who scored between 89-100 points on the examination.  Applicants who scored below 89 points were generally not considered for employment.

Several African-American applicants sued on the basis that the practice of selecting only applicants who scored 89 points or higher had a disparate impact on African-American applicants, and that the test was not a valid method of determining firefighting aptitude.   The City responded that the disparate impact claim should be dismissed because the plaintiffs did not file their claim within 300 days of the date the applicants were scored and separated based on their scores. The plaintiff’s argued that the 300-day statute of limitations should be counted from the date other applicants were hired over the plaintiffs.

The Supreme Court ruled that a plaintiff who did not file a timely charge challenging the adoption of an unlawful practice may assert a disparate impact claim in a timely charge challenging the employer’s later application of that practice.  The Court also ruled that the statute of limitations began anew each time the City “filled a new class of firefighters.”

This is a very different result than we got from the Court’s earlier decision in a case entitled Ledbetter v. Goodyear Tire, where the Court reached the opposite conclusion on a similar type of issue (which later resulted in the Lilly Ledbetter Fair Pay Act.)

 
EEOC’s 2009 Statistics

The Equal Employment Opportunity Commission (“EEOC”) recently published its statistics for 2009.  The statistics reflect charges of employment discrimination and resolutions under the statutes enforced by the EEOC, and by the various types of discrimination.

Some notable statistics are as follows:

Total charges:  93,277
Monetary relief obtained:  $376 million
Charges based on race:  36%
Charges based on retaliation:  36%
Charges based on sex:  30%

Charges alleging discrimination based on disability and religion have hit a record high.  Charges alleging discrimination based on age reached the the second-highest level ever for such claims.

You can view all the statistics on the EEOC’s website here.