Gender-specific bathroom ban for transgender police officer lands school employer in hot water

November 1, 2016

REUTERS/Jonathan Drake

REUTERS/Jonathan Drake

Employers face increasing challenges in navigating the legal landscape to avoid claims of sex discrimination as it relates to bathroom access for their transgender employees.

Although an employer may be tempted to resolve this issue by directing transgender employees to utilize a gender-neutral bathroom, this seemingly reasonable response may leave an employer open to sex discrimination charges under Title VII.

In Roberts v. Clark County School District, 2016 WL 5843046 (D. Nev. Oct. 4, 2016), a Nevada federal court judge said a transgender police officer was entitled to summary judgment on a gender-discrimination claim against a state school district.

Although the district contended it discriminated against Roberts based on his genitalia, not his status as a transgender person, U.S. District Court Judge Jennifer Dorsey found the district clearly treated Rogers differently than persons of both his biological sex (female) and his gender identification (male).

Bradley Roberts began his employment with the Clark County School District in 1992 as Brandily Netz, a female campus monitor. He eventually became a police officer and worked in that capacity with the district for 17 years. However, in 2011 Roberts began dressing for work like a man, identifying himself as a man and using the men’s bathroom at work.

After complaints from male coworkers, Roberts met with his commanding officers and explained he was transgender and in the process of transitioning to a man.

He also informed his commanding officers of his pending name change and his desire to use the men’s bathroom.

However, his commanding officers banned him from the men’s bathroom and directed him to use the gender-neutral restroom. They also refused to refer to him as a man or permit him to use the men’s bathroom without official documentation of a name and sex change.

The district subsequently distributed a department-wide memo regarding Roberts’ transition to a male, including his pending name change and the use of male pronouns in the department’s interactions with him. Not surprisingly, the memo sparked some “below-the-belt” questions from his coworkers, leading Roberts to file administrative charges with the Nevada Equal Rights Commission.

The charges alleged gender-identity discrimination based on the restroom ban and harassment during his meeting with district officials, including the school district’s failure to timely update department records to reflect his official name change to Bradley Roberts and his gender as male.

Before a scheduled hearing in the matter, the district reversed its ban on his use of the male bathroom.

Roberts filed his Title VII action two years later when the department still failed to update his gender in his personnel records. His suit alleged the department subjected him to discrimination, harassment and retaliation.

The suit also raised claims of gender discrimination and harassment under Title VII as well as gender-identity expression and harassment under the Nevada Anti-Discrimination statute.

Both parties filed cross-motions for partial summary judgment.

Judge Dorsey relied on 9th Circuit authority in ruling that Title VII applies to both “discrimination based on concepts of sex and discrimination based on other stereotypes about sex, including gender identity.”

Citing the district’s initial reasons for banning Roberts from both the women’s and men’s bathrooms — he no longer behaved like a woman, and his biological status as a female, Judge Dorsey found there was direct evidence of discriminatory intent.

Despite this finding of direct evidence, Judge Dorsey applied the McDonnell Douglas burden-shifting analysis and concluded summary judgment was nevertheless appropriate because the bathroom ban was an adverse employment action, and the district failed to articulate a legitimate, nondiscriminatory reason for the ban.

In contrast, the judge ruled summary judgment was not appropriate for either party on the harassment and retaliation claims.

The court found  conflicting information made it impossible say Roberts was severely or pervasively harassed as a matter of law, or that the ban would not have been imposed “but for” Roberts’ protected activity of requesting use of the men’s bathroom, and his refusal to provide medical documentation.