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EEOC Rules on Transgender Employee Restroom Rights

Posted on: April 9th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of federal bans on sex discrimination in employment, has ruled that a transgender woman employed in a civilian position by the U.S. Department of the Army, is entitled to use restroom facilities consistent with her gender identity, despite the agency’s objection to providing such access before the individual has undergone sex-reassignment surgery.  Although the EEOC had previously ruled that refusal to employ somebody because of their gender identity was a form of sex discrimination in violation of federal law, this was its first pronouncement on one of the great looming issues in transgender workplace rights: restroom access.

The case is Lusardi v. McHugh, the complainant being Tamara Lusardi and the named defendant being Secretary of the Army John M. McHugh.  The EEOC designates this as Appeal No. 0120133395.

Lusardi was hired as a male-identified person in 2004, as a civilian employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  The case decided by the EEOC relates to events from October 2010 through August 2011 when she was assigned to the AMRDEC Software Engineering Directorate, and was also doing work at the Project Management office, Aircraft Survivability Equipment, as a Software Quality Assurance Lead.

As early as 2007 she had begun to discuss her gender identity issues with the Division Chief, and she began the actual transitioning process in 2010, obtaining a legal name change from an Alabama court in April of that year from a male-identified first-name to her desired name of Tamara.  She requested that the name be changed in Department records, which was effected on October 13, 2010.  Two weeks later, at the request of the supervisor on the Aircraft Survivability Equipment job, she met with that supervisor and the Division Chief to discuss the process of transitioning to presenting herself in conformance with her gender identity, and the issue of how she would relate to co-workers came up, particularly regarding restroom use once she began presenting as a woman.  An agreement of sorts was reached, and memorialized in writing, that she would use a single-user restroom, referred to as the “executive restroom,” until she had undergone sex reassignment surgery.

She generally adhered to that agreement, but there were a few occasions when that restroom was unavailable or out of order, so she used the restroom designated for women, which brought forth objections from the supervisor and it turned into an issue.  There was also a problem of harassment, derived from another supervisor’s  apparent difficulty in accommodating to Lusardi’s gender identity.  This supervisor persisted in referring to Lusari with masculine pronouns or calling her “sir,” using her former first name, and “smirking” and “giggling” in front of others while stating “What is this, [Complainant’s former male name] or Tamara”?

Lusardi initially spoke with an EEO counselor about these issues in September 2011, and filed a formal complaint of disparate treatment and hostile environment with the agency’s EEO office on March 14, 2012.  A final agency decision was issued on September 5, 2013, concluding that she had failed to show a violation of the applicable ban on sex discrimination.  She appealed this ruling to the EEOC a few weeks later.  She also filed a complaint with the Office of Special Counsel, which is charged with ruling on internal executive branch personnel matters.  That office found that the restroom access denial was improper, in a report that ordered training for Army Department staffers but awarded no remedy to Lusardi.

Reversing the Army Department’s decision, the EEOC found that the disparate treatment in restroom access was a direct violation of the ban on sex discrimination.  Following up on the logical implications of its prior decision, it held that a transgender woman who is presenting as a woman is entitled to be treated by her employer as a woman.  This includes access to women’s facilities, regardless whether the individual has had surgery.  “This case represents well the peril of conditioning access to facilities on any medical procedure,” wrote the Commission.  “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 rejected the agency’s findings on the harassment claim, concluding that the insults to Lusardi were intentional, and ordered the agency to take concrete steps to educate its employees and supervisors on their non-discrimination obligations. The EEOC also ordered the agency to undertake a fact-finding investigation to determine compensatory damages for Lusardi in connection with the findings of sex discrimination and hostile environment.

It will be interesting to see whether the federal courts will fall in line with this ruling, which contradicts older court opinions.

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