By Deryn Sumner

Since its decision in Macy v. Dept. of Justice, EEOC No. 0120120821 (April 20, 2012), the Commission has continued to push the law forward to protect transgender employees from discrimination in the federal workplace.  Last year saw the issuance of the Commission’s decision in Lusardi v. Dept. of Army, EEOC No. 0120133395 (April 1, 2015), where the Commission found the agency subjected the complainant, who had transitioned from male to female, to disparate treatment and harassment based on her sex.  There, the agency had restricted her from using the common female restroom until she could provide “proof” of her complete transition, and her third-level supervisor referred to her by male pronouns and made hostile remarks after she announced her transition.

The latest decision from the Commission addressing claims of sex discrimination raised by a transgender employee came a few weeks ago when the Commission issued Hillier v. Dept. of Treasury, EEOC No. 0120150248 (April 21, 2016). The complainant, a transgender female, worked as a GS-13 Revenue Officer in Richmond, Virginia and was part of an agency employee organization named Christian Fundamentalist Internal Revenue Employees (CFIRE).  This organization met weekly on agency property for Bible study.  The complainant attended these meetings and at some point, informed the leadership of this organization that she was transgender and identified as a female, but attended the group meetings presenting as a male. Complainant asked if she could attend the weekly meetings “in the attire of the gender I believe I am: female” and the organization’s president denied the request.  A few weeks later, the organization’s president, in response to complainant’s request to present at a meeting, responded, “I cannot allow the CFIRE platform to be used to promote your transgender lifestyle.” In response, the complainant stated that she was not planning on presenting anything relating to transgender issues (she sought to present on “a play she recently saw and discuss Judas’ role in God’s plan, and what it means for Christians today”) and would not make the presentation dressed as a woman.  The organization’s president still refused the request and the complainant filed an EEO complaint. The agency dismissed for failure to state a claim, claiming that the organization’s president, not agency management, took the action at issue and therefore his acts were not the actions of the agency.

The complainant appealed and the Commission vacated the dismissal, reinstated the formal complaint, and remanded it for investigation.  Now some of you may be thinking, why should the agency be liable for the conduct of an employee who was acting in his capacity as an officer of an employee organization?  The Commission addressed that argument in its decision, finding that although the agency viewed the complaint as one of disparate treatment, it should have been framed as a harassment claim, noting that the complainant checked a box marked “harassment (non-sexual)” on the EEO counselor’s report.

The Commission further noted that agencies can be liable for harassment by a co-worker under a theory of harassment and the actions of this organization were related to the complainant’s employment noting, “CFIRE is an employee organization created and recognized under the Agency’s Employee Organization Policy, and sponsored by an executive member of the Agency. In accordance with this policy, employees of the Agency were permitted to organize as a group and use Agency facilities, meeting rooms, interoffice mail, and Agency newsletters. CFIRE members were also permitted to attend conferences and receive compensation by the Agency for travel expenses. As a result, any alleged discrimination from CFIRE and its officers or members is reasonably related to Complainant’s employment with the Agency.”
The Commission then found that the complainant stated a viable claim of harassment, noting “[w]e find that not allowing someone to dress as the gender with which they identify is severe enough to constitute a hostile work environment, as a reasonable person would find it hostile or abusive…Not allowing an employee to dress as the gender with which they identify and forcing them to dress as a gender with which they do not identify can be humiliating and dehumanizing, and it certainly unreasonably interferes with an employee’s work environment. Further, not allowing an individual to present on any topic simply because that individual is transgender causes further alienation and reasonably interferes with an employee’s work environment. Finally, the CFIRE President’s use of the term ‘transgender lifestyle’ can reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently. Therefore, we find that this complaint states a claim of sex-based harassment.” [Editor’s Note: This employee claimed “non-sexual harassment” and EEOC found “sex-based harassment.” Apparently, the employee’s claims don’t really matter when it comes to the conclusion EEOC will reach to do justice.]

The Commission further disposed of the agency’s arguments that CFIRE’s actions were an exercise of religion, noting that an employer is not required more than a de minimis burden to provide religious accommodation in the workplace. The Commission remanded the complaint for investigation within 150 days of when the decision became final. Sumner@FELTG.com

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