For nearly a decade, the U.S. Equal Employment Opportunity Commission said denying a transgender employee access to the restroom matching that employee’s gender identity violated Title VII.
Last month, the agency reversed course.
Private employers should read the fine print before changing anything.
TL;DR: Last month, the EEOC ruled that federal agencies may maintain sex-segregated bathrooms and exclude employees from opposite-sex facilities, overturning its 2015 Lusardi precedent. The decision applies only to federal agencies and does not bind courts or private employers. It also signals the EEOC is unlikely to pursue restroom-access claims based solely on Title VII. But private employers still face potential exposure from private lawsuits and state or local nondiscrimination laws.
What the EEOC actually decided
The decision comes from Selina S. v. Department of the Army, a federal-sector discrimination appeal involving a transgender civilian employee working at a military installation.
The employee sought access to women’s bathrooms and locker rooms. The Army denied the request and dismissed the employee’s EEO complaint. On appeal, the EEOC affirmed.
The Commission held that Title VII permits federal employers to maintain single-sex bathrooms and similar “intimate spaces” and to exclude employees from facilities designated for the opposite sex. In doing so, it expressly overturned Lusardi v. Department of the Army, where the EEOC had previously found that denying a transgender employee restroom access consistent with gender identity constituted sex discrimination.
The vote was 2–1. Chair Andrea Lucas and Commissioner Brittney Panuccio formed the majority. Commissioner Kalpana Kotagal dissented.
The dissent previews the lawsuits coming next
Kotagal’s dissent argues the majority misapplies Bostock v. Clayton County. Under Bostock’s but-for test, she writes, if an employee assigned female at birth could use the women’s restroom but a transgender woman could not, the difference in treatment occurs because of sex.
In other words, if you are wondering what the next Title VII complaint will say, the dissent already wrote the outline.
The fine print private employers should focus on
First, the ruling applies only to federal agencies. The EEOC issued the decision while reviewing a federal-sector discrimination complaint, and it does not bind courts or private employers.
Second, the decision signals a shift in enforcement posture. If the EEOC now believes Title VII permits sex-segregated restroom policies, the agency is unlikely to pursue private-sector charges based solely on those policies the way it might have under Lusardi. For private employers, that likely means fewer, if any, investigations into transgender restroom-access claims.
Third, courts still control the meaning of Title VII. The Supreme Court in Bostock did not decide bathroom or locker-room issues, leaving that question unresolved.
Fourth, don’t forget about state law. Many jurisdictions prohibit discrimination based on gender identity and likely would require employers to allow employees to use facilities consistent with their gender identity. For example, the New Jersey Law Against Discrimination generally requires employers to allow employees to use facilities consistent with their gender identity.
Bottom line
The EEOC reversed its restroom-access precedent. For private employers, that changes the federal enforcement landscape. But it does not eliminate litigation risk or override state law.