Groundbreaking EEOC ruling finds the Army discriminated against transgender employee by denying bathroom access, pronouns

April 8, 2015 -- In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII, the federal sex discrimination law. The decision found that the Department of the Army discriminated against Tamara Lusardi, a transgender employee who transitioned from male to female on the job, by barring her from using the same restroom as all other female employees, and by her supervisors' continued intentional use of male names and pronouns in referring to Ms. Lusardi after her transition. Transgender Law Center represented Ms. Lusardi with the pro bono assistance of Lieff Cabraser Heimann & Bernstein.

"From the start this has been about getting a fair shake to work hard at a job I love," said Tamara Lusardi. "As a disabled veteran, I take great pride in my work making sure our soldiers are safe, and I want to be able to focus on doing a good job without worrying about harassment in the workplace or getting in trouble when I need to use a bathroom. This decision makes it clear that, like everyone else in the workplace, transgender employees should be judged by the quality of the work we do, not by who we are."

Ms. Lusardi worked as a Software Quality Assurance Specialist in the U.S. Army Aviation and Missile Research, Development and Engineering Center (AMRDEC), in Alabama. When she transitioned from male to female in 2010, she was required to use a single-user restroom at work. Ms. Lusardi was reprimanded by her supervisor on the few occasions that she had to use the common women's restroom because the single-user restroom was out of order.  The EEOC concluded that this plainly violated her rights under Title VII. The EEOC found that by singling her out solely because of her transgender status for exclusion from the same facilities as all other female employees, the Army had deprived Ms. Lusardi of "equal status, respect, and dignity in the workplace," in violation of the law.

In addition to denying her a restroom consistent with her gender identity, her supervisors repeatedly used male pronouns and her old name in front of her co-workers and others, intentionally mocking her and "outing" her as transgender. The EEOC held that "[w]hile inadvertent and isolated slips of the tongue" would be a different story, it was clear in this case that the use of a male name and pronouns to refer to Ms. Lusardi "was not accidental, but instead was intended to humiliate and ridicule" her, finding that this conduct was "offensive and demeaning." Taken together with the exclusion from the restroom, the EEOC held that the Army had subjected her to a hostile work environment because of her transgender status.

"With this groundbreaking decision, the federal government has made it clear that it's not acceptable to single out transgender employees for harassment – including by forcing them to use a different bathroom than everyone else," said Kris Hayashi, Executive Director of Transgender Law Center, which represented Ms. Lusardi. "This case confirms that under our laws, all of us, including transgender people, get to have a fair chance to earn a living and be ourselves at work."

Title VII, the federal law that prohibits sex discrimination in employment, has been widely interpreted in recent years by courts and federal agencies to protect transgender employees. In 2012, the EEOC issued a landmark decision in another case brought by Transgender Law Center, Macy v. Holder, which held that discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.

The EEOC ordered the Army to provide Ms. Lusardi with compensatory damages and attorneys' fees and to conduct EEO training for all employees and supervisors in the facility where she works. In a parallel case decided in the fall of 2014, the Office of Special Counsel (OSC), a separate federal agency that enforces merit-system job protections for federal employees, also investigated and found that the Army unlawfully discriminated against Ms. Lusardi. OSC ordered the Army to provide sensitivity training, but did not address monetary damages.

The EEOC decision issued this week was one of only a handful of decisions issued each year by the full Commission, which gives it significant precedential weight. It represents the official policy of the EEOC and will be binding on all federal agencies and on all EEOC field offices that investigate and prosecute claims of employment discrimination from the private sector.

The lawyers representing Ms. Lusardi are Ilona M. Turner and Sasha J. Buchert, Transgender Law Center, and Kelly M. Dermody and Martin D. Quiñones, Lieff, Cabraser, Heimann & Bernstein, LLP.

Transgender Law Center  changes law, policy, and attitudes so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. www.TransgenderLawCenter.org