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Friday, January 30, 2015

Department of Labor Clarifies Restroom Access, Other Protections for LGBT Workers

Sex Discrimination Rules Updated to include Bias Based on Trans Status, Same-Sex Relationships

The National Center for Transgender Equality welcomes proposed regulations published today by the Department of Labor, which clarify that unlawful sex discrimination in the workplace extends to bias against transgender workers and workers in same-sex relationships. While this rule directly applies to federal contractors—who are already subject to explicit LGBT protections under a 2014 executive order—the rule confirms the increasingly broad legal consensus that sex discrimination laws protect all LGBT workers. Importantly, the proposed rule incorporates the essential principle that transgender workers must have equal access to workplace restrooms consistent with their identity.

“This regulatory update confirms what has been clear for some time: equal employment opportunity has to mean the ability to come to work as the person you really are,” said Harper Jean Tobin, Director of Policy. “Most employers are already doing the right thing, but this clarification is critical for transgender workers who still face losing their job over simply need to go to the restroom.”

The National Transgender Discrimination Survey found that nearly 80% transgender workers had access to appropriate restrooms at work—but as many as 1 in 5 workers did not, many of whom ended up losing their job because of their transgender status. Lower-income workers were more likely to be denied this basic right.

The sex discrimination rules enforced by DOL’s Office of Federal Contract Compliance Programs (OFCCP) are being updated to reflect the evolution of case law over the last three decades—including protections for LGBT workers that have been recognized by courts and other agencies. Sexual orientation and gender identity bias by federal contractors is already explicitly prohibited by President Obama’s 2014 update to Executive Order 11246. However, clarifying the overlapping sex discrimination protection for LGBT workers is consistent with existing regulations for federal workers and decisions of the Equal Employment Opportunity Commission.

 DOL’s proposed rule is consistent with the interpretations of many other federal and state agencies and courts. For example, the federal Office of Special Counsel recently found that a transgender federal worker who was told she could not use the same restrooms as other female employees had suffered unlawful discrimination. Public settlements reached by the Departments of Justice and Education under the federal Title IX law have also secured the rights of transgender students to access school restrooms consistent with their identity, and Justice Department guidance applies the same principle to domestic violence shelters and other programs funded by the Violence Against Women Act. Most states with explicit gender identity nondiscrimination laws have issued similar interpretations through guidance or regulations, as have a growing number of courts.

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