EEOC: U.S. Army’s bathroom restriction on transgender employee was sex discrimination

Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.

On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:

By extension, this tweet is intended for companies as well.

The tweet links to an article from Buzzfeed’s Chris Geidner. Mr. Geidner addresses a recent EEOC decision which underscores the risks employers face when they play bathroom police for transgender employees:

In a decision dated April 1, the Equal Employment Opportunity Commission found that Tamara Lusardi “was subjected to disparate treatment on the basis of sex” — a violation of Title VII of the Civil Rights Act of 1964 — while working as a civilian employee at the Army’s Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor. In addition, a supervisor repeatedly, and in front of other employees, referred to Lusardi by her former male name and with male pronouns.

While the EEOC’s decision involves a federal employer, and does not bind private employers, don’t think for a second that the EEOC would hesitate to pursue similar claims in the private sector. Indeed, it has. We’ve also seen a sex discrimination lawsuit by a former Sak’s transgender employee. That case settled.

As I noted in my prior transgender bathroom post, this issue is real. Employers need to educate their employees and train their managers that respect in the workplace extends to transgender employees too.