Employee Rights: Race, Religion and…Restrooms?

In a recent decision by the Equal Employment Opportunity Commission, Lusardi v. Department of Defense, the EEOC addressed two issues involving the rights of transgender employees. Can an agency deny a transgender employee who has transitioned to the opposite gender the use of restroom facilities that correspond with his or her gender? And can the intentional use of an employee’s former gender pronoun and name constitute a hostile work environment?

Tamara Lusardi was a civilian employee with the Department of the Army at Redstone Arsenal in Huntsville, Ala. She agreed to use a private restroom during the initial period of her transition. On two occasions, when the private restroom was unavailable, Lusardi used the women’s restroom. Both times she was confronted by a supervisor who informed her that she was required to use the private restroom until she could show proof of having undergone “final surgery.” Lusardi’s supervisor also repeatedly referred to her by her former male name and male pronoun in the presence of others in a manner intended to mock or humiliate her.

The EEOC established that Title VII of the Civil Rights Act of 1964, a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, does not require an employee to provide proof of a medical procedure as a prerequisite for equal opportunity. Therefore, an agency may not determine access to facilities on the basis of the completion of medical procedures that will establish proof of an employee’s gender. The EEOC also determined that in this case the intentional use of an employee’s former gender pronoun and name can constitute a sex-based hostile work environment.

In March, North Carolina’s legislature passed House Bill 2, a law that prevents transgender individuals from using bathrooms corresponding to the gender with which they identify. NIH, in accordance with federal law, asserts that denying transgender individuals access to restrooms and other workplace facilities consistent with their gender identity is a violation of Title VII. HB2 has no bearing on NIH employment or operations.

For more information on preventing and addressing workplace harassment, visit http://edi.nih.gov/consulting/guidance/toolkits. To reach out to the EDI Guidance team about NIH workplace concerns, visit http://edi.nih.gov/consulting/guidance/dear-guidance.