April 8, 2015 at 6:05 pm EDT | by Chris Johnson
EEOC: Army engaged in anti-trans bias by denying bathroom access
The EEOC found the Army discriminated against Tamara Lusardi. (photo courtesy Transgender Law Center).

The EEOC found the Army discriminated against Tamara Lusardi. (photo courtesy Transgender Law Center).

For the first time, the U.S. agency charged with enforcing civil rights law in employment has determined that prohibiting a transgender person from using the restroom of their identified gender constitutes sex discrimination under existing law.

In a 23-page decision made public on Wednesday, the U.S. Equal Employment Opportunity Commission determined the Department of the Army discriminated against Tamara Lusardi, an Alabama transgender woman and civilian worker, by denying her access to women’s restroom and allowing supervisors to refer to her by male pronouns. The commission found the Army violated the gender protections under Title VII of the Civil Rights Act of 1964.

“We find that Complainant proved that she was subjected to disparate treatment on the basis of sex when she was denied equal access to the common female restroom facilities,” the decision states. “We further find that the Agency is liable for subjecting Complainant to a hostile work environment based on sex by preventing her from using the common female restroom facilities and allowing a team leader intentionally and repeatedly to refer to her by male names and pronouns and make hostile remarks well after he was aware the Complainant’s gender identity was female.”

After she announced she would transition in 2010, Lusardi allegedly faced the discrimination in the first half of 2011 working as a software quality assurance specialist in the U.S. Army Aviation & Missile Research, Development & Engineering Center, or AMRDEC, in Alabama.

Although Lusardi reached an agreement for an initial period to use the executive bathroom instead of the common facilities, she used the common restroom designated for her identified gender on three separate occasions when the facilities designated for her were unavailable. After each time, a supervisor told her she was making people uncomfortable and would have to use to executive restroom until she had a proof of “final surgery.”

Another supervisor continually used male pronouns when speaking to Lusardi even though he was aware she identified as female, which had the effect of outing her as transgender when used in public. Although the supervisor acknowledged at the time the use of these pronouns was a “slip of the tongue,” Lusardi alleged he would often use male pronouns during heated exchanges “to elicit a response from her,” according to the decision.

In a statement, Lusardi said she filed a complaint accusing the Department of Army of engaging in gender discrimination in March 2012 because she wanted to ensure fairness in her workplace.

“From the start this has been about getting a fair shake to work hard at a job I love,” Lusardi said. “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.”

The decision, dated April 1, was the result of a 3-2 of vote among the agency’s commissioners, according to EEOC. Voting in agreement that discrimination took place was Chair Jenny Yang; Commissioner Chai Feldblum, a lesbian; Commissioner Charlotte Burrows. The dissent consisted of Commissioner Constance Barker and Victoria Lipnic.

The reasoning of the decision is along the lines of the EEOC ruling in the 2012 of Macy v. Holder, which established that transgender people who feel they’ve suffered discrimination are able to file a lawsuit under Title VII’s prohibition against gender discrimination. But the EEOC has never explicitly articulated that restrictions on restroom access constituted gender discrimination until now.

As result of the decision, the Department of the Army must allow Lusardi access to the common female restrooms, take immediate action to stop discrimination and harassment against her by co-workers and supervisors. After a supplemental investigation with the Army, the department must provide her compensatory damages. Additionally, the Army must provide at least eight hours of training to workers at the facility on gender discrimination.

The determination is one of only a few issued every year by the full EEOC, which gives it significant precedential weight. It represents the official policy of the agency and is binding on all federal agencies and on all EEOC field offices working on claims of employment discrimination in the private sector.

The EEOC complaint is but one action taken on behalf of Lusardi as a result of the alleged discrimination she faced in the workplace. In a parallel case decided in the fall, the Office of Special Counsel, a separate federal agency that enforces merit-system job protections for federal employees, investigated and found the Army wrongfully discriminated against Lusardi. The agency ordered the Army to provide sensitivity training, but did not address monetary damages.

Representing Lusardi in the litigation before the EEOC was the San Francisco-based Transgender Law Center and the law firm Lieff, Cabraser, Heimann & Bernstein LLP.

Kris Hayashi, executive director of Transgender Law Center, said the determination makes clear discrimination against transgender isn’t acceptable under current law.

“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,” Hayashi said. “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.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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