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 area:
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 socially-constructed characteristics.
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 status.
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.
We have 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 direction.
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