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Three cases form basis of EEOC’s stance on transgender bias

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in Discrimination and Harassment,Human Resources

On May 9, North Carolina sued the U.S. Department of Justice to stop the federal government from ordering the state to set aside its Public Facilities Privacy and Security Act—the so-called transgender bathroom bill.

The law, enacted in March, says individuals may only use public bathrooms that correspond to the gender that appears on their birth certificates.

The EEOC says that violates the Civil Rights Act. In a letter ordering the state to overturn the law, the DOJ said, “Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment. Denying such access to transgender individuals … violates Title VII.”

No matter the initial ruling, this case will almost certainly be heard by the 4th Circuit Court of Appeals and eventually the U.S. Supreme Court.

EEOC’s discrimination argument

The EEOC has made clear that it believes discrimination based on gender identity, gender expression or transgender status is a form of sex discrimination.

The EEOC first took that position in 2012, when it issued its decision in Macy v. Dept. of Justice, finding discrimination based on gender identity is discrimination “because of” sex in violation of Title VII. The Macy case was considered groundbreaking at the time, but many viewed the holding as limited because it only addressed the protections afforded a government employee.

In April 2015, the EEOC issued its decision in Lusardi v. McHugh, a case that also involved a government employee. In Lusardi, the employee transitioned from male to female and sought to use the women’s restroom. She claimed the mandate to use a unisex bathroom was discriminatory. The EEOC agreed, finding that requiring a transgender employee to use a unisex or individual bathroom was impermissible segregation.

More than a bathroom issue

Shortly after Lusardi, the EEOC sued Deluxe Financial Services, challenging its policy regarding restroom use by an employee undergoing a gender transition. However, the employee also complained about supervisors and co-workers allegedly subjecting her to discriminatory comments and purposefully failing to use the correct pronoun when referring to her. She claimed this created a hostile work environment.

In bringing that suit, the EEOC announced that requiring an employee to use a restroom inconsistent with her gender identity, whether due to employee or customer preferences or for other reasons, was discrimination in violation of Title VII.

In January 2016, Deluxe agreed to pay $115,000 to settle the suit.

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