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EEOC Affirms Right to Gender-Appropriate Bathrooms and pronouns for Transgender Employees

On April 1st, the EEOC issued a groundbreaking ruling that found that the Army discriminated against a transgender civilian employee by denying her access to the women's restroom and created a hostile work environment by allowing a supervisor to intentionally misuse her former name and male pronouns.

Tamara Lusardi is a veteran who works as a Software Quality Assurance Specialist for the U.S. Army in Huntsville, Alabama. Ms. Lusardi is a transgender woman who began the process of transitioning in 2010. During her transition, the Army forced Ms. Lusardi to use a single-user restroom rather than the common women's restroom. She was told that she would be permitted to use the women's restroom only after proving that she had undergone so-called "final surgery".

On a few occasions during her transition, the single-user restroom was out of order, and so Ms. Lusardi chose to use the restroom associated with her gender, the women's restroom. After each incident, she was confronted by a supervisor and told that she was making There employees feel "uncomfortable" by using the women's restroom. She was again told she would have to use the single- user restroom until she underwent the final medical procedure.

During this time, a male supervisor repeatedly referred to Ms. Lusardi by her former male name, by male pronouns, and as "sir."  He made the comments during moments of anger, in group settings, and during heated email exchanges regarding work matters. The supervisor used the male names and pronouns to insult Ms. Lusardi, sometimes laughing during the exchanges.

In reversing the Army's decision to dismiss Ms. Lusardi's Title VII complaint, the Commission found that the Army had discriminated against Ms. Lusardi by denying her access to the restroom associated with her gender. They explained:

"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 There 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 went on to conclude that "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."

The Commission also found the Army liable for subjecting Ms. Lusardi to a hostile work environment. Citing Vance v. Ball State University, it found that the Army was negligent in permitting Ms. Lusardi's supervisor to intentionally and repeatedly refer to her by male names and pronouns.

"Persistent failure to use the employee's correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is severe or pervasive enough to create a hostile work environment . . . While inadvertent and isolated slips of the tongue likely would not constitute harassment, under the facts of this case, [the supervisor's] actions and demeanor made clear that [the supervisor's] use of a male name and male pronouns in referring to [Ms. Lusardi] was not accidental, but instead was intended to humiliate and ridicule [her]."

The EEOC ordered the Army to, inter alia, immediately grant Ms. Lusardi "equal and full access" to the women's restroom; to investigate and determine if Ms. Lusardi was entitled to compensatory damages; and to provide training on gender identity, sex discrimination, and retaliation to all civilian staff and supervisors in Ms. Lusardi's workplace.

The case is Lusardi v. McHugh, EEOC Appeal No. 0120133395, dated April 1, 2015.

This post was coauthored by Lauren Parra, law clerk.

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