Query: a longtime employee, who has previously identified in
your workplace as female, begins dressing for work like a man,
grooming according to male standards, and identifying as male.
He begins to make arrangements to have his name formally
changed, and a number of other legal documents changed as well.
He also begins using the men's room at work. Other
coworkers complain about "a woman using the men's bathroom
at work." What do you do?
According to the U.S. District Court for the District of Nevada,
what you do
not do is: 1) ban him from the men's bathroom
for being biologically female, 2) ban him from the women's
bathroom for identifying as male, and 3) require him to use only
gender-neutral bathrooms. Last week, the court made headlines when it granted summary
judgment against a school district, on a Title VII sex
discrimination claim brought by one of the district's police
officers. (Roberts v. Clark County School District, No
2:15-cv-00388-JAD-PAL, ECF No. 147).
While the court denied summary judgment as to the officer's
retaliation and hostile workplace claims, it noted that established
case law holds that sex stereotyping is prohibited sex
discrimination under Title VII. In this case, the court noted
that the district banning the officer from using the women's
bathroom "because he no longer behaved like a woman" was
direct evidence of impermissible sex stereotyping.
Also of note: in granting partial summary judgment, the
court held that Title VII's prohibition against sex
discrimination includes both sex
and gender. At this point, some of our readers might be
somewhat confused at the difference between sex and gender. Citing
language from the Ninth Circuit, the court noted the difference
between these key terms, in recounting the case law history in this
These early cases distinguished between the term 'sex',
which referred to an individual's distinguishing biological or
anatomical characteristics and the term 'gender', [which]
refers to an individual's sexual identity, or
The court's language is significant because
it simultaneously rejected the school district's argument
to draw legal distinctions based on these terms:
Although [the district] contends it discriminated . . . based on
his genitalia, not his status as a transgender person, this is a
distinction without a difference here. [The officer] was clearly
treated differently than persons of both his biological sex and the
gender he identifies as–in sum, because of his transgender
Moreover, the court held that the bathroom action alone was a
sufficiently adverse employment action — in that "access
to restrooms is a significant, basic condition of employment"
— to involve Title VII protections.
previously discussed two separate theories that the EEOC and
plaintiffs have used to argue sexual orientation and/or gender
identity are incorporated into Title VII's ban on sex
discrimination. These theories have had a mixed track record
of success, and there is no certainty in predicting how they will
continue to play out in the coming months and years.
Still, a key takeaway from this case is that employers should
retain knowledgeable counsel to advise on employee workplace
transitions. Effective transition management can not only
help defuse potential workplace tension and avoid litigation, but
it can also lead to a more productive workplace, happier employees,
and keeping pace with the market's movement in this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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