Although federal agencies are generally aware that the EEOC has held discrimination based on transgender status constitutes illegal discrimination based on sex under Title VII of the Civil Rights Act, the type of conduct that might constitute such discrimination is often not as well known or understood. The EEOC’s Office of Federal Operations has issued multiple cases that shed light on the type of conduct agencies must be careful to avoid.
The EEOC first held that discrimination against someone due to their transgender status was discrimination based on sex in Macy v. Department of Justice, EEOC Appeal No. 0120120821 (2012). Thereafter, the Commission applied this standard in determining that various types of conduct were harassing and/or discriminatory based on an employee’s transgender status.
For example, the Commission has addressed the issue of transgender employees being able to use the proper bathroom that conforms with their gender identity. Bathroom use is not necessarily the type of issue one normally thinks about when considering what actions constitute adverse actions under Title VII, but the Commission made clear in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015), that if an Agency restricts a transgender female’s ability to use a common female restroom facility, it is disparate treatment on the basis of sex. A co-worker’s discomfort with the situation does not justify the Agency denying a transgender employee access to the proper bathroom, just as a coworker’s discomfort with a person of a different race would not justify discrimination based on race. In fact, the Commission has stated, “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.” Hillier v. Dep’t of the Treasury, Appeal No. 0120150248 (Apr. 21, 2016).
In Lusardi, the Commission also addressed a common issue that arises in transgender discrimination cases, namely, the use of incorrect pronouns and names. It is critical that agencies make employees aware of the importance of proper name and pronoun usage, or else risk opening itself up to liability. In Lusardi, the Commission explained that the restriction on the employee’s ability to use the proper restroom, combined with hostile remarks, “including intentional pronoun misuse,” created a hostile work environment for the complainant.
This is consistent with its earlier decision in Jameson v. USPS, EEOC Appeal No. 0120130992 (May 21, 2013), in which the Commission explained that “intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex based discrimination,” or even be sufficiently severe or pervasive to establish a claim for harassment.
This is not just true in communications among employees, but in employment records as well. In Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123 (Apr. 16, 2014), the Commission held that an allegation that the Commission failed to revise its internal records to reflect the correct gender identity of the complainant stated a claim. The Commission explained that the Agency’s delay of over a year in updating its system to change the complainant’s name caused sufficient harm to state a claim because, as the complainant alleged, “many people accessed the system, including veteran clients and other employees, which resulted in many questions about "Cynthia" (his unchanged user name in the system). Complainant said this put him in the position of having to divulge the reason for his name change, which he felt was a breach of his privacy.”
As these Commission cases highlight, it is important that agencies be aware of the unique issues transgender employees face and make efforts to ensure its employees are aware and sensitive to these issues as well.