EEOC Brings Transgender Restroom Issue To The Forefront Of Its Enforcement Agenda

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By:  Julia Turner Baumhart

 

With Caitlyn Jenner’s photos inundating the media, the EEOC is seizing the opportunity to advance the rights of transgender individuals.  On June 4, 2015, the Commission announced it would expand to the private sector its public sector interpretation of transgender rights in Lisardi v. Department of Army. And it did so immediately, filing a lawsuit in federal court against Deluxe Financial Services, Inc. the same day. EEOC v. Deluxe Financial Services, Inc., No. 15-cv-02646 (D. Minn. 2015). The lawsuit, filed on behalf of Deluxe male-to-female transgender employee Britney Austin, focuses primarily on the denial of Austin’s repeated requests to be allowed access to the company’s women’s restroom.

According to the EEOC, denying Austin the use of the restroom that conforms to her gender identity is a form of “sex stereotyping,” the theory adopted by the U.S. Supreme Court a quarter-century ago in Price-Waterhouse v. Hopkins, the case concerning a female executive who did not conform to feminine appearance and behavior norms due to her “lack of charm.”  The EEOC takes the sex stereotyping theory a step further, accusing Deluxe of sex-based disparate treatment against Austin not only because she did not conform to gender expectations concerning females, but also because she failed to conform to “sex or gender-based expectations or stereotypes related to individuals assigned the male sex at birth.”  The EEOC also alleged Deluxe subjected Austin to a sex-based hostile work environment by allowing coworkers and an outside vendor to mock her appearance and by failing to consistently refer to her as a female.

It remains to be seen how the courts will react to the EEOC’s position on transgender issues in the private sector.  What is evident, however, is that the EEOC is intent on advancing the public restroom issue.  In Lisardi, the EEOC opined that the use of a women’s restroom is an important part of living as a female and that denying a transgender female this right, even where she has not surgically transitioned to a female, will cause feelings of inferiority.

Unfortunately, it is the restroom issue that is proving most perplexing to employers because non-transgender employees complain – or the employer anticipates they will complain – about sharing their restroom with the not yet fully transitioned female (or male, in the less common case of a female-to-male transgender individual).  In Lisardi, the EEOC opined that limiting the transgender employee to a unisex single-occupancy restroom is not a permissible option.  And some proponents of the EEOC’s position in Deluxe suggest that women who object to the presence of a transgender female in their restroom should be the ones relegated to the unisex option due to their “narrow-mindedness.”

Working with a transgender employee in transition remains a sensitive proposition that must be carefully managed.  Time will tell whether the courts will agree with the EEOC.  For now, however, employers should understand the EEOC’s announced position and, from a compliance perspective, expect to be challenged if they deny a transgender employee access to the restroom that conforms to his or her gender identity.

This e-blast was written by Julia Turner Baumhart, who is a member of the Detroit SHRM Legal Affairs Committee.  Ms. Baumhart is a partner in the labor and employment firm of Kienbaum Opperwall Hardy & Pelton, P.L.C. in Birmingham, Michigan and can be contacted at jbaumhart@kohp.com or (248) 645-0000.  

Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee.  June 2015.