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 discriminatory working conditions." In so doing, the OSC cited cases for the now-familiar proposition that customer preference is no defense to discrimination, because "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. See, e.g.Fernandez v. Wynn Oil Co., 653 F.2d 1273, 176-77 (9th Cir. 1981)(finding discrimination when female employee fired because employer’s foreign clients would only work with male employees); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971)(rejecting customer preference for female flight attendants as justification for discrimination against male applicants); Macy [v. Holder EEOC Appeal No. 0120120821], 2012 WL 1435995 at *11 (Title VII prohibits sex discrimination whether motivated by hostility, gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort)."

This case is instructive for all employers, whether they are government contractors subject to the recently amended Executive Order banning discrimination based on LGBT status, employers in states that include LGBT as a protected category, or are simply subject to Title VII's prohibition against sex discrimination. Access of transgender persons to restrooms is a prime issue. Conditioning access to a restroom of the employee's chosen gender based on having gender reassignment surgery is strongly discouraged by advocacy organizations because, among other reasons, most transgender persons never undergo such surgery. Continuing to refer to a transgender employee by a name and pronouns of the employee's former gender is offensive.

The OSC suggested training on LGBT issues as a corrective action. Private and public employers alike would do well to heed that suggestion. The amended Executive Order, this case and the tenor of the times all require employers to help their supervisors and managers address these largely unfamiliar situations.