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New Federal Publications Address Employer FMLA Obligations and Transgendered Employees’ Restroom Rights

Peter J. Richter

May 11, 2016

Recently two federal agencies issued new guidance that will apply to many employers in the United States. First, the U.S. Department of Labor (DOL) released a new guide on the Family and Medical Leave Act. Shortly thereafter, the Equal Employment Opportunities Commission (EEOC) published a new Fact Sheet discussing an employer’s obligations with respect to bathroom access for transgendered employees.

Under the Family and Medical Leave Act (FMLA), an eligible employee is generally entitled to a total of 12 workweeks of covered leave during a 12-month period.  In addition, the FMLA provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any right under the act and covered employers are obligated to post a FMLA poster that explains the FMLA and outlines an employee’s right to leave.  Earlier this year, the DOL issued a new poster that it believes is easier to read.  Employers can find the new poster on the DOL’s website, but at this time the old version (February 2013) may still be used. In addition to the new poster, the DOL published an Employer’s Guide to The FMLA (the “Guide”).  As with the poster, the Guide can be found on the DOL’s website and may be downloaded for free. It includes an overview of the FMLA, along with various charts, diagrams, definitions, and citations to pertinent sections of the FMLA regulations.

Title VII of the Civil Rights Act (“Title VII”) covers private employers with 15 or more employees, as well as labor unions and employment agencies. Title VII forbids employment discrimination or discrimination in union membership based on race, color, religion, sex, or national origin. It covers hiring, promotion, firing, transfer, or any other condition of employment. Title VII is administered by the EEOC and in addition to reinstatement, back pay, fringe benefits, and attorney fees, successful complainants may be awarded compensatory and punitive damages, including damages for emotional pain and suffering and other nonpecuniary losses.

Earlier this month, the EEOC released a Fact Sheet on the application of Title VII to bathroom access for transgendered employees. The issue of restrooms and transgendered individuals has received significant attention in the press lately as state and local governments debate whether and how to regulate what businesses must offer. Perhaps in response to all the attention, the EEOC issued the Fact Sheet to emphasize the agency’s stance on the subject. Among other things, the EEOC Fact Sheet sets forth the agency’s position that pursuant to Title VII, employers must allow a transgendered employee to use the restroom that corresponds to the individual’s gender identity and that “[c]ontrary state law is not a defense.” The EEOC states its position that an employer may not avoid Title VII liability by providing a single-use restroom and requiring that all transgendered employees use that particular bathroom. The entire Fact Sheet can be found on the EEOC’s website.

Rules and regulations governing the employment relationship are constantly evolving to address new issues. Accordingly, it is important that all employers stay diligent when it comes to keeping abreast of changes, for any misstep can lead to serious problems.


If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney. 

DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.