The U.S. Department of Justice has sent a formal communication to Governor Pat McCrory of the state of North Carolina, informing him that North Carolina has violated Title VII of the Civil Rights Act of 1964 by engaging in the practice of discrimination against transgender employees. The state withheld full Title VII rights from transgender employees of public agencies by not complying with H.B.2 (in effect since March 23, 2016), which permits restroom access and other facilities consistent with one’s gender identity.
Title VII is a federal law that forbids sex discrimination within the employment sector. This law prohibits any employer from discriminating against individuals on the basis of sex, which includes gender identity. According to the Department of Justice (“DOJ”) letter, “Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.”
In addition, the U.S. Equal Employment Opportunity Commission (EEOC) held that “[e]qual access to restrooms is a significant, basic condition of employment, and that denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII.”
Of note, the DOJ’s notice included a citation to Lusardi v. Dep’t of the Army, No. 0120133395, 2015 WL 1607756:
Significantly, the U.S. Equal Opportunity Commission (“EEOC” recently addressed this very issue and held that “‘[e]qual access to restrooms is a significant, basic condition of employment,’ and that denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII.” Lusardi v. Dep’t of the Army, No. 0120133395, 2015 WL 1607756, at *9. (EEOC April 1, 2015).
Lieff Cabraser and the Transgender Law Center represented Tamara Lusardi, a transgender civilian software specialist employed by the U.S. Army. In a groundbreaking decision in April 2015, the Equal Employment Opportunity Commission reversed a lower agency decision and held that the employer subjected Lusardi to disparate treatment and harassment based on sex in violation of Title VII of the Civil Right Act of 1964 when (1) the employer restricted her from using the common female restroom (consistent with her gender identity) and (2) a team leader intentionally and repeatedly referred to her by male pronouns and made hostile remarks about her transition and gender.
Lieff Cabraser’s Work Upholding Employee Rights
Lieff Cabraser has a strong tradition of fighting for employee rights across America. Our employment law class action cases challenge (a) discrimination based on employees’ race, color, national origin, religion, age, gender, sexual orientation, or disability; (b) wage violations, including failure to pay overtime, break time, or vacation time; and (c) misuse of employees’ retirement benefits. Learn more about Lieff Cabraser’s Employment Law practice.