## Facts

- Tamara Lusardi, a civilian employee at the U.S. Army’s Aviation and Missile Research Development and Engineering Center at Redstone Arsenal, worked as a Software Quality Assurance Lead during 2010–2011.
- Lusardi is a transgender woman; she began transitioning in 2010 and obtained a court-ordered name change.
- Federal personnel records were updated to reflect her name and sex in October 2010.
- Management and Lusardi discussed workplace transition arrangements, including restroom use.
- A written transition plan required Lusardi to use a single-user “executive restroom” rather than the common women’s restroom until she had an undefined surgery.
- When the executive restroom was unavailable, Lusardi used the common women’s restroom.
- Supervisors admonished her and told her she could not use the women’s restroom unless she had surgery and obtained management approval; the agency monitored her restroom usage and imposed restrictions not applied to other employees.
- A team leader repeatedly referred to Lusardi using male names and pronouns after being informed she was female and after records reflected her as female; he also made hostile remarks tied to her gender identity.
- Lusardi filed an EEO complaint alleging sex discrimination under Title VII based on disparate treatment and a hostile work environment; the agency issued a final decision finding no discrimination, and Lusardi appealed to the EEOC.

## Issues

1. Whether discrimination against a transgender employee based on gender identity or transition is discrimination “because of sex” under Title VII.
2. Whether restricting a transgender woman to a separate single-user restroom and conditioning access to the common women’s restroom on surgery or special approval constitutes disparate treatment in the terms and conditions of employment.
3. Whether persistent intentional misgendering and hostile remarks related to gender identity constitute sex-based harassment creating a hostile work environment.

## Decision

- The EEOC reversed the agency’s no-discrimination decision.
- The EEOC held that Title VII’s prohibition on sex discrimination includes discrimination based on gender identity, change of sex, and transgender status.
- The EEOC found disparate treatment where the agency denied Lusardi equal access to the common women’s restroom and imposed sex-based restrictions and monitoring not applied to other employees.
- The EEOC found a hostile work environment based on the team leader’s intentional, repeated misgendering and hostile comments, considered together with the restroom restrictions.
- The EEOC ordered corrective relief, including cease-and-desist measures, training (including on transgender issues), consideration of discipline for responsible officials, posting a notice, and processing compensatory damages on remand.

## Legal Principles

- Intentional discrimination against a person for being transgender, transitioning, or having a gender identity different from sex assigned at birth is discrimination “because of sex” under Title VII.
- An employer violates Title VII by denying a transgender employee equal access to a common restroom corresponding to the employee’s gender identity or by requiring separate facilities as a condition of employment.
- Title VII does not allow an employer to make surgery or other medical procedures a prerequisite to equal treatment and access to sex-segregated facilities consistent with gender identity.
- Coworker discomfort, confusion, or bias does not justify imposing discriminatory terms and conditions of employment.
- Persistent, intentional misgendering and related demeaning remarks can be sex-based harassment; combined with other sex-based restrictions, such conduct may be sufficiently severe or pervasive to create a hostile work environment.

## Conclusion

The EEOC concluded that Title VII protects transgender federal employees from sex discrimination, and that restricting a transgender woman’s restroom access and repeatedly misgendering her constituted unlawful disparate treatment and a sex-based hostile work environment, warranting reversal and remedial relief.


Lusardi v. McHugh, No. 0120133395, 2015 WL 1607756 (E.E.O.C. Apr. 1, 2015)