EEOC Affirms Stance on Transgendered Employees

Earlier this month, the Equal Employment Opportunity Commission issued a decision affirming its position that discrimination based on sex under Title VII includes discrimination against a transgendered employee. Lusardi v. McHugh, Secretary, Department of the Army (EEOC, April 2015).

Lusardi was a transgendered employee transitioning from male to female. In 2010, she received a decree from an Alabama court changing her name from one commonly associated with men to one commonly associated with women. In October 2010, Lusardi and management discussed a plan for messaging her gender transition, which included a plan for restroom use. The plan indicated Lusardi would use an executive restroom rather than the common women’s restroom until after she underwent surgery.

Lusardi followed the plan, but used the common women’s bathroom on a few occasions when the executive restroom was out of order. In response, her male supervisor made negative comments and addressed her with male pronouns.

In its agency decision, the EEOC wrote that “[c]onsidering all these circumstances as we must, we find that these actions were sufficiently severe or pervasive to subject Complainant to a hostile work environment based on her sex.”

Many states have civil rights laws protecting transgendered employees. This is a reminder to employers that such protections also exist under federal law, even though they aren’t stated explicitly in Title VII of the Civil Rights Act.