Following up on my earlier posts here and here, the Equal Employment Opportunity Commission (“EEOC”) has just filed a third lawsuit in which it charged an employer with sex discrimination of a transgender employee.

The EEOC said Friday it has filed suit against Minnesota-based Deluxe Financial Services Corporation charging it with violation of Title VII of the Civil Rights Act of 1964 for allegedly subjecting employee Britney Austin to sex discrimination.

The EEOC said that Ms. Austin had performed her duties satisfactorily in the financial services firm’s Phoenix office. The EEOC alleged that Deluxe refused to let her use the women’s restroom after she began to present at work as a woman and informed her supervisors she was transgender.  The EEOC also stated that supervisors and co-workers subjected Ms. Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her.

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Rayford O. Irvin, the district director for the EEOC’s Phoenix district office, said in a statement:  “A long-term, well-respected employee should not be rewarded for her years of dedicated service by being forced to face the indignity and danger of using a restroom inconsistent with her gender identity, simply because a company’s management subscribes to sex stereotypes and believes co-workers may feel uncomfortable. Employee and customer preferences based on stereotypes are not a legitimate reason to discriminate.”

What is the takeaway for employers?

  1. Update your policies and procedures.
  2. Recognize that the EEOC is focusing on discrimination and harassment that involves gender identity and therefore your nondiscrimination and harassment policies and procedures need to include, both in writing and in practice, a bar against discrimination/harassment based on gender identity.
  3. Bathroom policies, as I recently posted, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has recently issued guidance for employers regarding transgender bathroom access. Employers should follow that guidance (in this most recent case, bathroom access was an issue).

See my earlier post about OSHA’s bathroom access guide for transgender employees.

See my earlier post about Title VII protections for transgender employees.

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Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.