Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includersghs discrimination based on a person’s gender.

The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer.  In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  He also started using the men’s bathroom at work.  Co-workers in turn complained that a woman was using the men’s bathroom.  A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.”  When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change.

Roberts filed an administrative charge with the Nevada Equal Rights Commission alleging, among other things, gender identity discrimination on account of the bathroom ban.  Based on the facts, the Nevada Equal Rights Commission issued a probable-cause finding (meaning that based on its investigation that the Department likely discriminated against Roberts), and the matter was scheduled for a public hearing.  Before the hearing, however, the Department issued a new bathroom policy which no longer singled out Roberts and required him to use the gender-neutral bathrooms.

Roberts then brought a lawsuit against the Department alleging gender discrimination and harassment under Title VII, as well as gender identity expression discrimination and harassment under Nevada’s Anti-Discrimination Statute.  While Nevada law broadly prohibits “gender” discrimination, Title VII as written only prohibits discrimination “because of . . . sex.”  As we have blogged about previously, though, the EEOC has taken the position that discrimination on the basis of sex includes discrimination on the basis of gender identity (as well as sexual orientation, but that is not relevant to this case as gender identity and sexual orientation are two different things).

The District Court of Nevada agreed with the EEOC and found that the Department’s bathroom ban was an adverse employment action.  Along with citing to Ninth Circuit and Fourth Circuit cases which extend protections to transgender individuals, the Nevada court also cited to two EEOC cases, which dealt with government employees:

  1. Macy v. Holder, where the Commission concluded that discrimination against a transgender person is by definition discrimination based on sex and violates Title VII because “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes”; and
  2. Lusardi v. McHugh, which found that equal access to restrooms is a significant, basic condition of employment and denying transgender individuals access to a restroom is consistent with gender identity discrimination on the basis of sex in violation of Title VII. (OSHA takes this position as well.  See more information here).

The Fourth Circuit case is the Gloucester County School Board v. G.G. case (involving a transgender student’s ability to use the bathroom at school), which the Supreme Court is currently deciding whether it will take up.  The Ninth Circuit cases cited stand for the proposition that Title VII applies to discrimination based on concepts of sex and discrimination based on other stereotypes about sex, including gender identity.  Such stereotypes include acting as one would traditionally assume a man or woman to act.  These are known as sex-stereotyping claims.

Typically, employment cases rely on what is called circumstantial evidence (requiring the factfinder to look at the surrounding context to decide whether there was discrimination).  However, because the bathroom ban was the Department’s policy, there was what is referred to as direct evidence (which is seldom found in discrimination cases).  The court said that it did not need to address the legitimate, non-discriminatory reason for the Department’s ban because of the direct evidence.  However, even if it did, the Department’s basis for the ban (employee privacy) was unfounded, as there was no testimony supporting such a finding and because the policy was not based on those privacy concerns.

This is not the first case dealing with transgender employee access to bathrooms.  Indeed, in the unpublished case of Kastl v. Maricopa County Community College District, which the Nevada court cited to in its opinion, the Ninth Circuit panel held that the a transgender community-college teacher, who identified as a woman, had established a case for gender discrimination after her employer banned her from the women’s bathroom, stating that she would only be allowed in if she proved she had biologically changed her sex to female.  What is most interesting about this case from my perspective though is how persuasive the Nevada Court found the EEOC cases.  I think that this marks a clear trend in federal law going forward of extending Title VII rights to transgender employees in the context of bathroom usage.

This area of law is developing (almost) daily, and it will be even more interesting to see how the Supreme Court addresses the Gloucester County School Board v. G.G. case.   In Maryland, gender identity is already a protected characteristic under state law, but if you have any questions on handling employee transitions, you should consult your attorney.