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Monday, April 13, 2015

The New Landmark EEOC Ruling Explained: Workers Have Right to Restrooms Based on Identity

In a landmark ruling reported last week, the US Equal Employment Opportunity Commission (EEOC) ruled that employees have the right to equal access to workplace facilities that are consistent with their gender identity. Denying use of common restrooms consistent with a worker’s identity because they are transgender, the EEOC ruled, is a form of gender-based discrimination in violation of the Title VII of the 1964 Civil Rights Act. The ruling builds on 2012 Macy v. Holder ruling recognizing that Title VII protects transgender workers from job discrimination. NCTE congratulates Tamara Lusardi, the Army civilian worker who brought the case, and the Transgender Law Center, which represented Ms. Lusardi.

Ms. Lusardi worked as a software in engineer for the Army in Alabama. After six years on the job, she transitioned from male to female. Initially, she agreed to use a separate, single-user restroom rather than the common women’s restrooms. When she used the shared restrooms because the separate restroom was out of order or being cleaned, she was admonished that she could not do so until she provided proof of some (unspecified) form of surgery. After a year of this, she filed a civil rights complaint. The Army argued that it was legal to give Ms. Lusardi access only to a separate restroom while barring her from using the same restrooms as other women, and this restriction didn’t rise to the level of discrimination. The Commission disagreed: “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender. It perpetuated the sense that she was not worthy of equal treatment and respect.” In doing so, “the Agency refused to recognize Complainant's very identity. Treatment of this kind by one's employer is most certainly adverse” under the law, the Commission concluded.

The Army also argued that it was reasonable to restrict Lusardi’s restroom use until she proved she had had surgery. The Commission roundly rejected this argument: “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 Commission said that there was no reason to question the fact that Lusardi—who lives and identifies as a woman—is female.

Finally, the Army argued that Ms. Lusardi could not claim discrimination because she had temporarily accepted using the separate restroom. The Commission responded that while an employee may choose to accommodate coworkers’ discomfort, they do not waive their right to equal opportunity and can always assert it.

The ruling, approved by the full Commission, is binding on the Commission itself and other federal agencies, though courts are not bound to follow it. The EEOC is far from alone in reaching this conclusion. The US Office of Special Counsel ruled similarly in the same case last year. The Department of Labor has proposed the same approach in updated rules for federal contractors. The Justice Department recently advocated this view in a court brief on behalf of a Michigan student. And federal guidance for homeless shelters and domestic violence programs has applied the same principle. At least ten states and the District of Columbia have, through case law, regulations, or administrative guidance interpreted their human rights laws in the same way the EEOC interprets the federal law: all persons have the right to access facilities consistent with their gender identity. If the EEOC’s view is right—and we think it is—it’s likely that proposed state laws that would restrict or even criminalize use of proper restrooms by trans people would be largely overridden by federal laws.

The Commission rejected a pair of contrary rulings by federal courts, saying their reasoning was fatally flawed. The Commission noted that a ruling from 2007, often touted by opponents of LGBT equality, is based on the assumption that federal law does not protect transgender people at all, and admits that if it did it would include protecting them from restroom discrimination. The commission faulted both prior rulings for the premise that avoiding complaints by unhappy coworkers or customers is a valid defense—a view rejected by courts for decades in other types of civil rights cases. If the complaints the employer wants to avoid are themselves based on the protected trait, courts have said, that is still discrimination.

Lusardi’s complaint also cited persistent harassment by a team leader, who repeatedly used male pronouns and made derogatory comments toward her. Citing an earlier EEOC decision, the Commission said that this was a form of gender-based harassment. The Army was ordered to provide Lusardi equal treatment and to determine appropriate compensation for her.

“This is a watershed decision,” concluded NCTE Director of Policy Harper Jean Tobin. “While we still urgently need a clear national law to eliminate any doubt that LGBT people are fully protected, this ruling helps solidify what nondiscrimination means in real life, whether at work, at school, or seeking housing or health care.”

NCTE strongly encourages anyone experiencing discrimination to visit our Know Your Rights center and to seek legal help. The EEOC accepts discrimination complaints from all LGBT people as sex discrimination.

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