A recent Equal Employment Opportunity Commission decision provides insight for employers on how to handle the often unfamiliar area of transitioning transgender employees in the workplace.
The matter involved a complaint by a civilian transgender Army employee transitioning from male to female. The employee alleged that the Army illegally discriminated against her by requiring her to use a single-use restroom, rather than the general women’s restroom until the surgery to complete the transition was final. The employee also asserted that her supervisor’s repeated use of her former male name and male pronouns in reference to her were further evidence of illegal discrimination.
With regard to restroom use, the Army maintained that the employee was “still basically a male, physically” because she had not undergone “final surgery,” and that use of the women’s restroom would make other employees uncomfortable. Further, use of the male name and pronouns were “slips of the tongue.”
The EEOC found that the Army’s actions amounted to illegal discrimination based on sex. The EEOC’s decision directly addresses some of the most difficult issues that employers face related to transitioning employees. The EEOC noted:
"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 individuals’ gender identity…..And certainly where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the agency must allow her access to the women’s restrooms."
Addressing the Army’s argument that other employees may feel uncomfortable sharing a restroom with a transgender employee, the EEOC noted that other employees “may object — some vigorously — to allowing a transgender individual to use the restroom consistent with his or her gender identity.” However, the EEOC concluded that the “confusion or anxiety” of other employees “cannot justify discriminatory terms and conditions of employment.”
As we have previously noted, the expansion of Title VII’s protection against sex discrimination to cover transgender discrimination is a key aspect of the EEOC’s aggressive enforcement agenda. The EEOC has filed at least two lawsuits since last fall involving transgender discrimination. In addition, in December 2014, Attorney General Eric Holder issued guidance indicating that going forward the Department of Justice would take the position in litigation that Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. Consistent with that announcement, in March the DOJ filed a lawsuit against Southeastern Oklahoma State University alleging that it violated Title VII by denying a transgender professor a promotion on the basis of her sex and retaliating against her when she complained about the discrimination.
As this issue becomes more prevalent in the workplace, employers making decisions affecting transgender employees should understand how the EEOC will view claims of transgender discrimination. The EEOC’s recent decision provides such guidance for employers. According to the EEOC, Title VII protects against discrimination on the basis of transgender status, even if that discrimination is premised on a “desire to accommodate other people’s prejudices or discomfort.” In fact, “allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”
While the EEOC’s position is clear, its recent decision involving a federal employee is not binding on courts and gender identity protections are still not specifically enumerated under federal law. That means that this issue and the scope of transgender protection are still open to interpretation by the federal courts. We will keep employers updated on developments.