• EEOC says restricting a transgender employee's access to female restroom until after sex reassignment surgery can be discrimination under Title VII
  • July 3, 2015 | Author: Joshua A. Brand
  • Law Firm: Burns White LLC - West Conshohocken Office
  • In Lusardi v. McHugh, Secretary of Army, the Equal Employment Opportunity Commission (EEOC) concluded that a transgender employee was subject to disparate treatment because she was denied use of the female restroom until after her sex reassignment surgery had taken place. In finding that the Army discriminated against the complainant by restricting her access to the female restroom, the Commission held:Free-Gender-Symbols-PSD

    ...Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities – or to other terms, conditions, or privileges of employment – on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.

    The EEOC also found that the complainant had been subject to a hostile work environment based on evidence that she was frequently and repeatedly referred to with male pronouns and called by her former male name.

    Although the EEOC’s ruling is not binding on private employers, it is suggestive of the position the Commission is likely to take in discrimination charges filed by transgender private sector employees. More broadly, it is part of a recent and growing tide of legal victories for the transgender workforce since December of 2012, when the EEOC announced that coverage of transgender individuals under Title VII’s discrimination provision had been adopted into its Strategic Enforcement Plan. On April 13, 2015, the Commission settled a discrimination lawsuit on behalf of a transgender employee against her former employer, Lakeland Eye Clinic, for $150,000. On April 21, 2015, the U.S. District Court for the Eastern District of Michigan denied an employer’s motion to dismiss the EEOC’s discrimination lawsuit filed on behalf of a transgender employee, finding that the EEOC had stated a cognizable claim of discrimination under Title VII on a sex stereotyping theory. It should be noted that a point of emphasis remains on this case: the EEOC’s position that transgender employees are a protected category under Title VII has not yet been adopted by the Third Circuit or the U.S. Supreme Court. However, sex-stereotyping, generally defined as discrimination based on an individual’s perceived gender non-conforming characteristics, has been an actionable form of discrimination since the Supreme Court’s 1989 decision, Price Waterhouse v. Hopkins.

    In light of these developments at the EEOC, along with the growing number of municipalities and states that have enacted legislation prohibiting discrimination against transgender employees, employers should proceed with caution when dealing with gender transitioning employees and restroom assignments. Employers should consult with their counsel before setting any restrictions on bathroom use, and, if appropriate, discuss with the employee their needs during their period of transition. Employers are also well-advised to update their workplace discrimination and harassment policies and trainings to address discrimination against transgender employees.