The U.S. Office of Special Counsel (OSC) recently found that the Department of Army engaged in gender identity (transgender) discrimination against Tamara Lusardi, after Lusardi announced she was transitioning from male to female. The OSC is an independent federal investigative and prosecutorial agency tasked mainly with protecting federal employees from prohibited personnel practices (PPP) in violation of 5 U.S.C. § 2302. This particular law is limited to federal employees but it contains the same basic principles as the sections of Title VII of the Civil Rights Act of 1964 which relate to employment discrimination.
The OSC report found incidents and behaviors including limiting Lusardi's restroom access, refusing to use proper name and pronouns, and subjecting Lusardi's workplace conversations to increased scrutiny and review to be "sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment." The Army agreed to resolve the matter by providing training for supervisors regarding PPPs and gender identity discrimination, as well as general workplace and sensitivity training.
Similar to Title VII, California law protects employees from discrimination and harassment under the Fair Employment and Housing Act (FEHA). In fact, in several key respects, FEHA is actually broader than Title VII. For example: FEHA expressly prohibits discrimination or harassment based on sexual orientation, gender identity and gender expression; FEHA extends protection to independent contractors as well as employees and job applicants; and the FEHA ban on harassment applies to all employers regardless of size.
Coupled with the recent filing of the Equal Employment Opportunity Commission's first transgender discrimination cases, the OSC's ruling can be seen as real progress by the Federal Government in protecting the rights of transgender employees. But even with the greater protection afforded California employees, the struggles transgender individuals face in the work place are too often ignored. Part of that may be due to all of the ignorance and unfounded bias surrounding transgender discrimination, deterring even seasoned attorneys from accepting certain cases.
At The Rutten Law Firm, APC we understand the difficulties and indignities that many transgender individuals face at each and every turn. We have experience successfully representing employees victimized by transgender discrimination and are not afraid of the challenge. If you feel that you have been the target of discrimination based on gender identity at work or that you have been fired in retaliation for complaining about discrimination, consultation with an experienced attorney can inform you of your potential remedies and rights under existing law.