Department Of The Army Found To Have Discriminated Against Transgender Employee

We recently reported on President Obama's amendment to Executive Order 11246 banning discrimination based on LGBT status. Now the Office of Special Counsel (OSC) has found that the Department of the Army discriminated against a transgender civilian employee in violation of a separate federal law, and strongly suggested that such discrimination is a form of sex discrimination under Title VII.

The civilian employee had transitioned from a man to a woman beginning in 2010, changing her name and adopting a female appearance. When employees expressed concerns, the agency restricted her to an executive, single-stall restroom until she underwent gender reassignment surgery. When she used the female restroom out of necessity on several occasions, she was told to use the single-stall restroom because she was making coworkers uncomfortable. Her supervisor, apparently intentionally, kept using her male birth name and male pronouns, months after she asked to be referred to as female. Management asked the employee not to discuss her gender transition with coworkers. Nevertheless, throughout this period, management consistently represented to the employee that it wanted to ensure that she was treated fairly and afforded a fair work environment.

Using Title VII standards for discriminatory harassment as a framework, the OSC found that, "despite what was perhaps the best of intentions," the limitation on the employee's restroom usage, use of her birth name and male pronouns, and restriction of her conversations "were sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment" and "significantly changed her working conditions." This conduct violated 5 U.S.C. §2302(b), the Prohibited Personnel Practices governing the federal workforce that are enforced by the Merit Systems Protection Board. Specifically, the OSC found a violation of Section (b)(10) (discrimination based on conduct not adverse to work performance).

The OSC went on to say that the various prohibited actions "also likely constitute a [Prohibited Personnel Practice] of sex discrimination under section 2302(b)(1)." The OSC explained that the employee should have been able to use her choice of restroom, that conversations regarding restroom use intruded on her privacy, and that the agency's conditioning of particular restroom use on gender reassignment surgery was impermissible. The OSC also emphasized that "coworker (or even supervisor) anxiety alone cannot justify...