Department agrees to undergo sensitivity training
Transgender Law Center praised the U.S. Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency, for its recent groundbreaking decision(.pdf) that the Department of the Army engaged in unlawful discrimination against a transgender employee, Tamara Lusardi. After Ms. Lusardi, a disabled veteran, transitioned from male to female on the job, her supervisor continued to call her “sir” and “he,” and she was told that she could not use the same restroom as all other female employees. Transgender Law Center is representing Ms. Lusardi.
Ms. Lusardi worked as a Software Quality Assurance Specialist in the U.S. Army Aviation and Missile Research, Development and Engineering Center (AMRDEC), in Alabama. When Lusardi transitioned from male to female in 2010, she was required to use a single-user, gender neutral restroom. Ms. Lusardi was reprimanded by her supervisor on the few occasions that she used the general women’s restroom because the single-user restroom was out of order.
OSC found that the Army’s restriction of Ms. Lusardi’s restroom use “intruded on [her] privacy, was inappropriate, and subjected [her] to significant discomfort and humiliation.” It noted that the restroom restriction served as a constant reminder that she was deprived of equal status, respect, and dignity in the workplace.” In addition, Ms. Lusardi’s supervisor repeatedly used male pronouns and her old name in front of her co-workers and others. The OSC report concluded that this mis-gendering was sometimes intentional – for example, pointing to one occasion where he called her by her birth name, followed by a “smirk”.
The OSC report concluded that the Army “unlawfully discriminated against Ms. Lusardi on the basis of gender identity.” Altogether, OSC concluded the Army’s actions were “sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment.”
Title VII, the federal law that prohibits sex discrimination in employment, has been interpreted by courts and the Equal Employment Opportunity Commission (EEOC) to protect transgender employees. In 2012, the EEOC issued a landmark decision in another case brought by Transgender Law Center, Macy v. Holder, which held that discrimination based on gender identity was a form of unlawful sex discrimination under Title VII.
Relying on “the guiding principles of Title VII,” OSC found that the Army’s treatment of Ms. Lusardi was unlawful discrimination under the Civil Service Reform Act, which prohibits discrimination against federal employees for conduct unrelated to their work performance. In response to the report, the Department of the Army has agreed to provide sensitivity training about working with LGBT coworkers for employees and supervisors at the AMRDEC facility.
Transgender Law Center’s Legal Director Ilona Turner praised the OSC’s ruling. “The Office of Special Counsel’s report is groundbreaking in its conclusion that some of the most common forms of harassment faced by transgender people on the job should be recognized for what they are: unlawful discrimination. This decision makes clear that it’s not acceptable to deny a transgender employee access to the same restroom as everyone else, or keep calling her by her former name and pronoun for months after she transitions. It’s hurtful and stigmatizing, it’s discriminatory, and it violates federal law.” She added, “We are grateful to the OSC’s staff for their thorough investigation, insightful analysis, and commitment to justice for Tamara and all transgender workers in the federal government.”
Transgender Law Center is representing Ms. Lusardi in a parallel discrimination case with the EEOC over the Army’s actions, with the pro bono assistance of Lieff Cabraser Heimann & Bernstein. That case is pending before the EEOC’s Office of Federal Operations.
“OSC finds that the acts at issue were sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment. That is, the Agency’s intentional limitations on Doe’s restroom usage significantly changed her working conditions, as did her supervisor’s repeated use of her birth name and male pronouns and her manager’s targeted restriction of the content of her conversations with coworkers.” (p.6)
“…the Agency’s agreement with Doe on restroom usage had the effect of isolating and segregating Doe and treating her differently from employees of her same gender... Doe experienced these effects on a daily basis for many months, and they served as a constant reminder that she was deprived of equal status, respect, and dignity in the workplace.” (p.8)
“We acknowledge that while certain employees may object to allowing a transgender individual to use the restroom consistent with his or her gender identity, coworker (or even supervisor) anxiety or confusion alone cannot justify discriminatory working conditions. Indeed, allowing the preferences or prejudices of coworkers to dictate the working conditions of another employee reinforces the very stereotypes and biases that Title VII is intended to overcome.” (p.8)
“Despite what was perhaps the best of intentions, the Agency made significant adverse changes in Doe’s working conditions by repeatedly singling her out, and discriminating against her, on the basis of her gender identity, including her gender transition from a man to a woman.” (p.10) Read Report (.pdf)