Restricting Transgender Employee's Access to Gender-identity-appropriate Restroom is Sex Discrimination: EEOC | Practical Law

Restricting Transgender Employee's Access to Gender-identity-appropriate Restroom is Sex Discrimination: EEOC | Practical Law

In Complainant v. McHugh, Secretary, Department of the Army, the Equal Employment Opportunity Commission (EEOC) held that denying a transgender employee the use of a restroom consistent with her gender identity constitutes sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), and that an employer's persistent failure to use a transgender employee's correct name and pronoun can also constitute sex discrimination if the conduct is sufficiently severe and pervasive to create a hostile work environment. The EEOC reversed a Final Agency Decision (FAD) by the Army concluding that the civilian employee had failed to prove discrimination.

Restricting Transgender Employee's Access to Gender-identity-appropriate Restroom is Sex Discrimination: EEOC

by Practical Law Labor & Employment
Published on 17 Apr 2015 • USA (National/Federal)
In Complainant v. McHugh, Secretary, Department of the Army, the Equal Employment Opportunity Commission (EEOC) held that denying a transgender employee the use of a restroom consistent with her gender identity constitutes sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), and that an employer's persistent failure to use a transgender employee's correct name and pronoun can also constitute sex discrimination if the conduct is sufficiently severe and pervasive to create a hostile work environment. The EEOC reversed a Final Agency Decision (FAD) by the Army concluding that the civilian employee had failed to prove discrimination.
On April 1, 2015, the EEOC held in Complainant v. McHugh, Secretary, Department of the Army that denying a transgender employee the use of a restroom consistent with her gender identity constitutes sex discrimination under Title VII, and that an employer's persistent failure to use a transgender employee's correct name and pronoun can also be sex discrimination if the conduct is sufficiently severe and pervasive to create a hostile work environment. The EEOC reversed a Final Agency Decision (FAD) by the Army concluding that the civilian employee had failed to prove discrimination. (EEOC DOC 0120133395, (Apr. 1, 2015).) The EEOC's policy is to redact the names of complainants when it publishes decisions. The unredacted version of the decision has been released by the complainant's attorneys.

Background

Tiffany Lusardi, a civilian software quality assurance lead working for the US Army, began the process of transitioning to female in 2010, including officially changing her name and having the government change her sex on all of her personnel records. In November 2010 she informed all of her co-workers about her transition. She agreed to use a single-user "executive" restroom instead of the women's restroom at least until she had an undefined surgery. This agreement was approved by the deputy program manager, who indicated that he anticipated women would feel discomfort over Lusardi using the women's restroom because, in the deputy program manager's words, Lusardi was "still basically a male, physically."
Lusardi claimed she was subject to the following treatment during 2011:
  • On at least three occasions when she used the women's restroom because the single-user restroom was unavailable, her supervisor confronted her and told her she could not use the women's restroom until she could prove that she had undergone transition surgery.
  • On multiple occasions (including in front of others who later corroborated Lusardi's account) a male supervisor referred to her by her formal male name or as "sir", used male pronouns when referring to her, and on some occasions did so while smirking or appearing to use sarcasm.
  • Lusardi's co-workers did not treat her as an equal, something she complained about to at least one supervisor.
  • Lusardi's employer monitored her conversations with co-workers and instructed her not to discuss details of her transition with co-workers.
Lusardi filed a formal discrimination and harassment complaint in March 2012 and elected to receive an immediate FAD without a hearing after the Army completed its investigation. The FAD concluded that Lusardi had failed to prove discrimination and harassment. Lusardi appealed.
Separately, Lusardi filed a prohibited personnel practice (PPP) complaint with the Office of Special Counsel (OSC). The OSC issued a PPP report in October 2014 finding that the army violated the Civil Service Reform Act of 1978 by engaging in discrimination on the basis of gender identity (see Legal Update, US Office of Special Counsel Orders Corrective Action for Army's Discrimination Against Transgender Employee). While the actions taken by OSC did not moot Lusardi's EEOC case, the EEOC took OSC’s order into account in determining Lusardi's remedies.

Outcome

The EEOC found that the Army's:
  • Acknowledgment that Lusardi had been prevented from using the women's restroom solely due to other employees' anticipated discomfort over Lusardi's status as a transgender woman constituted direct evidence of discrimination, as such discomfort does not permit employers to implement discriminatory terms and conditions of employment. (Macy v. Holder, EEOC DOC 0120120821, (Apr. 20, 2012).
  • RestrictingLusardi's access to the women's restroom was an adverse action, because:
    • equal access to restrooms is a basic employment condition, and
    • the restriction resulted in Lusardi being segregated from other females in the workplace and deprived her of equal status.
  • Conditioning Lusardi's access to the women's restroom on Lusardi having surgery to complete her gender transition was improper because gender reassignment surgery is not a fundamental component of gender transition.
  • Refusing to use her correct name and gender on multiple occasions created a hostile work environment, rejecting the supervisor's contention that these instances were a mere "slip of the tongue" and not meant maliciously.
Relying on its 2012 decision in Macy v. Holder, which involved a government agency's failure to hire a transgender woman and held that claims of discrimination based on transgender status are cognizable as sex discrimination claims under Title VII, the EEOC held in this case that:
  • Denying a transgender employee the use of a restroom consistent with her gender identity constitutes sex discrimination under Title VII.
  • An employer's persistent failure to use a transgender employee's correct name and pronoun can also constitute sex discrimination if the conduct is sufficiently severe and pervasive to create a hostile work environment.
Although Lusardi did not report her supervisor's conduct to management, the EEOC found that the Army had constructive knowledge of the supervisor's conduct because it was out in the open in front of other employees. The Army did not provide any evidence that it took prompt action to remedy the supervisor's conduct.

Practical Implications

The EEOC's decision is a binding decision on federal agencies which requires them to:
  • Prevent and remedy sexual harassment directed at transgender employees.
  • Provide access for transgender employees to a workplace restroom that corresponds to the employee’s gender identity.
Although the EEOC’s decision is not binding on private employers, this decision (as well as Macy) was approved by a vote of the full Commission and:
  • Reflects the EEOC’s official position that sex discrimination under Title VII includes gender identity discrimination.
  • Indicates that the EEOC will continue to focus attention on protecting transgender employees from workplace discrimination and harassment.
For more information on the federal sector EEO program and the role of the EEOC, see Practice Note, Discrimination in Federal Public Employment: Federal Sector EEO Program.