A Win for Transgender Workers
October 29, 2014 - Posted by Angela Pavao
The U.S. Office of Special Counsel (OSC), an agency charged with investigating and prosecuting illegal practices in the federal workplace, made an important and legally reverberating decision last week when it ruled in favor of a transgender federal employee facing workplace discrimination.
Tamara Lusardi, a software quality specialist for the U.S. Army – and a transgender woman – reported discrimination by employers and coworkers. Although she is legally recognized as female, supervisors relegated her to a separate bathroom, frequently referred to her by her former name and with male pronouns, and restricted her conversation with fellow employees about her transition.
Using case-specific investigative findings, past rulings by the Equal Employment Opportunity Commission (EEOC), and context from the American Psychological Association, the OSC ultimately agreed with Lusardi’s discrimination claim.
The official OSC report highlights two key findings: a) her conduct did not interfere with her performance or that of others and b) the acts against her “were sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment.” As a result of the ruling, the Army has agreed to implement workplace diversity and sensitivity training and allow Lusardi access to female restrooms.
The case comes five years – almost to the day – after another important moment for transgender rights: On October 28, 2009, President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which expanded the umbrella of hate crimes to include violent acts “motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person.”
In the labor arena, other recent developments include Department of Labor guidance that classifies transgender discrimination as sex discrimination, a June executive order that bans federal contractors from unfairly treating transgender and LGBT employees, and an EEOC ruling two years ago that the OSC used as the legal basis for Lusardi’s case. All of these examples highlight an encouraging trend towards increased protections for transgender workers.
Despite this progress, transgender individuals continue to routinely face judgment, animosity, and even retaliation. Openly transgender people still cannot serve in the military. In addition, there have been numerous allegations of abuse against transgender individuals in prisons – both by officials and by other inmates, with officials often turning a blind eye.
Discrimination is even found in voting: one study shows that state-level voter ID laws threaten to disenfranchise over 25,000 transgender people whose gender on their IDs no longer matches their appearance. Together, this demonstrates the continued need for society to rally with the transgender community because for true change to occur, people must look beyond stereotypes and differences to find that we all share a common humanity.