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On February 26, 2026, the Equal Employment Opportunity Commission (EEOC) issued a decision on bathroom access in federal workplaces, establishing that intimate spaces such as bathrooms, locker rooms, and sleeping quarters in federal settings are to be designated by sex rather than gender identity. In its decision, the EEOC held that "Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces. And it permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite-sex facilities." The EEOC's lone Democrat dissented and accused the Commission of suggesting that "transgender people do not exist."
The EEOC decision signals a departure from its 2015 decision in Lusardi v. Department of the Army, where it found that denying an employee access to a bathroom corresponding to their gender identity could contribute to a hostile work environment. While the ruling shifts away from precedent, the EEOC "stress[ed] the limited reach of [its] quasi-judicial authority." In other words, this decision is not applicable to or binding on private sector employers or the federal courts, so private employers may continue to provide employees access to intimate spaces that correspond with their gender identity. Employers should also note that, according to the US Supreme Court, Title VII continues to protect employees from discrimination based on gender identity and sexual orientation.
Ballard Spahr's Labor and Employment Group frequently advises employers on issues related to employment law and policy. We will continue to monitor the Commission's agenda and the impact of changes to EEOC guidance. Please contact us if we can assist you with these matters.
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