FEDweek

EEOC Reverses Dismissal of Sex Discrimination Claim

The U.S. Equal Employment Opportunity Commission (EEOC) reversed the Army’s dismissal of a transgender woman’s discrimination claims in Appeal No. 01201333395 (April 1, 2015), and ordered the Army to pay compensatory damages, attorneys fees, supplemental EEO training for personnel and contractors, additional EEO training for managers, and a posting order. The EEOC also ordered the agency to consider disciplining the managers responsible for the discriminatory actions and statements.

The complainant alleged that she was subjected to disparate treatment and harassment based on sex when the U.S. Army Aviation and Missile Research Development and Engineering Center (AMREDEC) at Redstone Arsenal in Huntsville, Ala., restricted her from using the common female restroom, and that a male team leader made hostile remarks and intentionally and repeatedly referred to her by male pronouns.

She alleged that the agency assigned her to an “executive restroom” or “single shot” restroom after she disclosed her plans to transition to female. She also alleged that management and co-workers called her “sir” and “it” after she began dressing as a woman and legally changed her name, driver’s license and security clearance.

The Commission rejected the agency’s arguments that she consented to the agency’s actions or that the harassment was not “severe and pervasive.” After evaluating the written record (there had been no hearing), the Commission concluded that she proved that the agency subjected her to disparate treatment on the basis of sex when it denied her equal access to the common female restroom facilities and that the agency also was also thereby liable for creating a hostile work environment.

The Commission also ruled that the agency further created a hostile work environment by allowing the team leader intentionally and repeatedly refer to her by male names and pronouns—often in front of other agency employees and managers—and to make hostile remarks well after the team leader knew that her gender identity was female. The Commission reaffirmed its 2012 holding that discrimination against a person because of his or her transgender status is “by definition, discrimination ‘based on . . . sex.”

Of note here, the Commission quoted extensively from guidance issued by OPM to assist agencies in working with transgender employees to develop plans for individual employee transitions. Also of particular note, the Commission strongly rejected the agency’s argument that the complainant’s apparent acceptance of the agency’s offer of a separate restroom indicated that she believed the action was not discriminatory. The Commission strongly reiterated the settled law that an employee can never prospectively waive his or her Title VII rights.  The Commission also strongly rejected the agency’s argument that it required the separate restroom because co-workers might be “uncomfortable” with sharing the restroom. The Commission reiterated that an agency cannot justify discrimination “to accommodate other people’s prejudices or discomfort.”

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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