October 28, 2015
By Thomas Bourgeois, Senior Associate
Most employees would hardly consider choosing a restroom to use at their workplace an important decision; however, for transgender or transsexual employees, this decision can be a difficult and anxiety-laden one. A transgender person would likely prefer to use a restroom designated for the sex with which he or she identifies as opposed to one designated for his or her anatomical sex. However, these employees may also fear ridicule—or worse, action—from co-workers who may have privacy or safety concerns with such use. Many transgender employees feel their employers are discriminating by not allowing them to use the restroom of their choosing.
The legal doctrine surrounding the discrimination of transgender employees is involved, in part because of the complexities of human sexual identity. This post seeks to introduce the reader to this legal landscape. It will first provide a historical snapshot, followed by an overview of more recent decisions involving the discrimination of transgender employees, and finally will address how courts have attempted to balance equities in cases specifically involving restroom use.
I. Early Cases
Among other things, Title VII outlaws an employer’s discrimination against employees “because of [their] sex.” As recently as the 1980s, transgender employees were wholly unsuccessful in bringing employment discrimination claims under the statute. In early decisions such as Ulane v. Eastern Airlines, Inc., courts effectively created a complete bar to such actions by stating that Title VII offered transgender employees no protection. According to these courts, the statute’s definition of “sex” encompassed only male and female, not transgender; to them transgender individuals did not belong to a protected class. Thus, Title VII only prevented discrimination “against women because they are women and against men because they are men,” but not transgender because they are transgender.
The viability of these cases came into question after the Supreme Court’s Price Waterhouse v. Hopkins decision. There, the Court held that Title VII protects employees from discrimination stemming from their failure to conform to stereotypes associated with their gender or, put another way, that “discrimination on the basis of gender stereotype is sex-based discrimination.”
Under this framework, transgender plaintiffs essentially have two theories on which they may bring a claim today. The plaintiff may challenge the Ulane lineage and assert that transgender is included in Title VII’s definition of “sex” and thus is a protected characteristic, or a plaintiff may assert a sex-stereotyping claim under Price Waterhouse.
II. Recent Cases
Although many of the cases decided after Price Waterhouse are inconsistent on more minute points, at least one general principle is apparent: after Price Waterhouse, Ulane and similar cases no longer stand as a complete bar to Title VII claims by transgender employees. From here, though, the divergence in approaches among courts becomes apparent.
A. Recent Increases in Protection
The majority of courts deciding whether transgender is a protected class have upheld Ulane’s binary definition of “sex.” However, in the 2006 Schroer v. Billington decision, the court expressed discontent with this binary definition of “sex.” The court stated that including transgender within the definition of “sex” would be the most straightforward way of dealing with “the complexities that underlie human sexual identity.” The Equal Employment Opportunity Commission (“EEOC”) agreed, stating that Price Waterhouse’s holding was that the phrase “because of . . . sex” includes discrimination based on gender, not just binary biological sex.
Aside from altering the definition of “sex,” some courts have protected plaintiffs by implicitly holding that when an employer discriminates against an employee because the employee is transgender, the action is per se sex stereotyping under Price Waterhouse and, thus, is unlawful discrimination. For instance, in Glenn v. Brumby, the Eleventh Circuit stated that the very acts that make a transgender person transgender are those that defy gender-appropriate appearance; therefore, when an employer discriminates against an employee for being transgender, the reason for the discrimination is by definition a failure to comport to gender norms. The Sixth Circuit has similarly held that transsexual people are considered such precisely because they do not behave or appear in accordance with the stereotypes typically associated with their anatomical sex. In other words, because transgender persons by definition do not comport to gender norms, discrimination against a person because he or she is transgender is per se discrimination under Price Waterhouse. Although not expressly stated, their reasoning has the effect of making transgender persons a protected class under Title VII, albeit using the two-step rationale described.
B. Restroom Cases
Although courts have become more welcoming to employment discrimination claims by transgender employees, protection in cases involving restroom use remains in question. The Ninth Circuit has held that, although transgender employees can feasibly bring a claim under Price Waterhouse, an employer’s refusal to allow an anatomical male to use the women’s restroom was not unlawful discrimination because the employer’s motive for the ban was “safety concerns.” Other courts have stated that requiring employees to use restrooms in accordance with their anatomical sex rather than restrooms designated for their identified sex is not discrimination at all. According to these courts, Price Waterhouse protects only from discrimination based on conformance to a stereotypical appearance or behavior, not conformance with commonly accepted restroom practices.
Conversely, according to the EEOC, an anatomical male who identifies as female is female, and therefore, not allowing that employee to use a female restroom is discrimination. In the EEOC’s view, co-worker confusion or anxiety about an employee’s transgender status does not justify this type of discriminatory action.
Protection for transgender and transsexual employees has progressed significantly. In cases not involving restroom use, the simplest and most inclusive approach seems to be that of the EEOC; that is, discrimination against an employee because that employee is transgender is discrimination under Title VII because “gender” is included within the definition of “sex.” This reasoning simplifies the implicit “per se” rule used by other courts by avoiding the two-step rationale.
The most contentious issue remaining seems to be restroom use. A balance must be struck between transgender employees’ interests in using restrooms designated for the sex with which they identify and the—potentially unfounded—safety and privacy interests of co-workers. In order to best accommodate transgender employees while avoiding confrontation in the workplace, the best practice for employers may be to simply create at least one single-occupant, gender-neutral restroom that transgender employees can use without fear of controversy or persecution.
 Transgender persons are those “whose gender identity, gender expression, or behavior does not conform to that typically associated with [their anatomical sex].” Am. Psychological Ass’n, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression 1 (2014), available at https://www.apa.org/topics/lgbt/transgender.pdf [https://perma.cc/UU74-V5BD]. Transsexual people are transgender people whose gender identity is different from their assigned sex and often alter or desire to alter their bodies to become more “congruent” with their identified sex. Id.
 42 U.S.C. § 2000e-2(a) (2012).
 See, e.g., 742 F.2d 1081, 1084–88 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661–63 (9th Cir. 1977).
 See Ulane, 742 F.2d at 1084–88; Sommers, 667 F.2d at 750; Holloway, 566 F.2d at 661–63.
 Ulane, 742 F.2d at 1085.
 490 U.S. 228 (1989).
 Id. at 250–51.
 Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).
 See, e.g., id. at 573; Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); Eure v. Sage Corp., 61 F. Supp. 3d 651, 661 n.6 (W.D. Tex. 2014).
 See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007); Johnston v. Univ. of Pittsburgh, No. 3:13-213, 2015 WL 1498853, at *12 (W.D. Pa. Mar. 31, 2015) (citing Title VII jurisprudence).
 424 F. Supp. 2d 203, 212 (D.D.C. 2006).
 Id. at 212–13.
 Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *5–7 (E.E.O.C. Apr. 20, 2012).
 See Glenn, 663 F.3d at 1316–19; Smith, 378 F.3d at 571–75.
 See Glenn, 663 F.3d at 1316–17.
 Smith, 378 F.3d at 575 (“[D]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination . . . in Price Waterhouse . . . .”).
 Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493–94 (9th Cir. 2009).
 See Johnston v. Univ. of Pittsburgh, No. 3:13-213, 2015 WL 1498853, at *15–18 (W.D. Pa. Mar. 31, 2015) (interpreting Title VII case law to apply to Title IX discrimination claims); Johnson, v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 999–1000 (N.D. Ohio 2003).
 See Johnston, 2015 WL 1498853, at *15–18; Johnson, 337 F. Supp. 2d at 999–1000.
 Lusardi v. McHugh, No. 0120133395, 2015 WL 1607756, at *9 (E.E.O.C. Apr. 1, 2015).
 Id.; see also OSHA, Best Practices: A Guide to Restroom Access for Transgender Workers 2 (2015), available at https://www.osha.gov/Publications/OSHA3795.pdf [https://perma.cc/575K-VU5Q].