U.S. Army Loses Battle to Regulate Bathroom Selection of Transgender (Civilian) Employee

13 April 2015 Labor & Employment Law Perspectives Blog

On April 1, 2015, the EEOC ordered the Army to pay damages for discriminating against a transgender employee when it prevented her from using the common women’s bathroom and routinely demeaned her by calling her “sir” and other names meant to deprive her of equal status, respect, and dignity in the workplace.

The complainant is a transgender woman. She talked with her employer about transitioning her gender presentation/expression, and these talks initially went well. An agreement was reached that during transition, the employee would use a single-user bathroom rather than the common women’s restroom until she had undergone an undefined surgery. The plan was for the employee to start using the common women’s bathroom only after the surgery was complete.

But when the single-use bathroom was found to be out of order for several days, the employee used the common women’s bathroom. Each time this was discovered, the Army confronted her and told her she was making people uncomfortable, and that she needed to avoid the women’s restroom until she could show proof of having undergone the “final surgery.”

In the EEOC proceeding (a procedure used when the alleged discrimination is against certain government agencies), the Army argued that (1) the employee initially agreed that she would use a single use bathroom rather than a common bathroom during the transition period, and the final procedure had not occurred yet; (2) women in the building would have felt uncomfortable having someone in the restroom who is “still basically a male, physically”; and (3) there was no adverse action.

The EEOC found many problems with the Army’s approach. First, when the employee agreed to use the “single-use” restroom, she did not waive her Title VII rights prospectively. Transgender discrimination is disparate treatment because of a person’s sex, and an agreement reached at an earlier point in time does not waive an employee’s rights later on. Second, the EEOC held that supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Third, the EEOC held that restriction of bathroom choice was not only an adverse employment action, but also harassment. The EEOC held that the Army’s efforts to regulate bathroom usage in this instance deprived the employee of equal status, respect, and dignity in the workplace, and therefore deprived her of equal employment opportunities. Additional evidence of supervisors insisting upon calling the employee “sir” further weakened the Army’s position. The EEOC found that the Army publicly segregated and isolated her from other employees of her gender and communicated that she was not equal to those other employees because she is transgender. When managers insisted on calling her “sir,” it compounded the discrimination and sent the message that the employee was unworthy of basic respect and dignity because she is a transgender individual.

Finally, the EEOC found fault with the Army’s decision to condition access of the women’s common restroom facilities upon the occurrence of a “final medical procedure.” Once a transitioning employee has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity. There should never be a requirement to provide proof of any particular medical procedure.

The EEOC’s recent decision is another in a long line of steps meant to expand the protections for transgender employees. President Obama signed an executive order last year banning workplace discrimination against lesbian, gay, bisexual and transgender employees of federal contractors and the federal government. Earlier this year, the Army eased limitations for transgender soldiers. And for the first time, last year, the EEOC sued two private employers based on transgender discrimination and alleging that employees were terminated for not conforming to the employers’ gender-based expectations.

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