EEOC Issues Federal Sector Appellate Decision Recognizing the Ability of Federal Agencies to Designate Intimate Spaces in Federal Workplaces by Sex

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 today to approve a federal sector appellate decision adjudicating an appeal regarding access to intimate spaces, including bathrooms and locker rooms, in federal workplaces under Title VII of the Civil Rights Act of 1964, as amended.

In today’s decision, the EEOC held that “Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces,” and that Title VII “permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities.”

The EEOC adjudicates federal employment discrimination appeals. In this appeal, a trans-identifying federal employee claimed an agency’s policy of designating bathrooms based on sex as opposed to “gender identity,” pursuant to Executive Order 14168, constituted unlawful sex-based discrimination in violation of Title VII.

“Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” said EEOC Chair Andrea Lucas. “When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

When adjudicating appeals of alleged employment discrimination in the federal sector, the EEOC applies longstanding precedent, including relevant Supreme Court decisions, to the facts of the case. In this case, however, such precedent does not exist, as federal courts have not determined whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex. In the absence of authoritative court precedent, the EEOC used the traditional tools of statutory construction, turning first to the ordinary meaning of the statute’s text and ensuring that the decision is further anchored by the Supreme Court’s precedents in comparable areas of law.

In applying the traditional tools of statutory construction, the EEOC found that Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces; and permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite sex-facilities. Today’s opinion overturns a prior EEOC federal sector appellate decision (Lusardi v. Department of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (2015)) with respect to the portion of that opinion addressing a federal employee’s access to an opposite-sex bathroom based on “gender identity.”

As with all of the EEOC’s appellate decisions adjudicating federal agency employment discrimination complaints, this decision applies only to federal agencies subject to the EEOC’s administrative complaint process for federal employees. It does not apply to private sector employers, nor does it bind any federal court.

The EEOC is the sole federal agency authorized to investigate and litigate against businesses and other private sector employers for violations of federal laws prohibiting employment discrimination. For public sector employers, the EEOC shares jurisdiction with the Department of Justice’s Civil Rights Division. The EEOC also is responsible for coordinating the federal government’s employment antidiscrimination effort. More information about the EEOC is available at www.eeoc.gov.