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Friday, October 7, 2016

Transgender Confusion Brings Litigation


By Thomas Eden

The Clark County, AZ School District hired Bradley Roberts as a campus monitor in 1992. At that time, he was known as Brandilyn Netz and wanted to be a police officer.  In 1994, Roberts graduated from the Police Academy and was hired by the District as a police officer.  Roberts held that position without incident for seventeen years.

In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  And he started using the men’s bathroom at work.   When others complained that a woman was using the men’s bathroom, Roberts’s commanding officers scheduled a meeting with him.   Roberts confirmed that it was him and explained that he was transgender and in the process of transitioning into a man.  He also told them that he wants to be known as Bradley Roberts and use the men’s bathroom. But Roberts’s commanding officers told him that he could not use the men’s rooms and that he should confine himself to the gender-neutral restrooms “to avoid any future complaints.” 
In response, Roberts sent a letter to his superiors again explaining that he was changing his name to Bradley J. Roberts, wanted his coworkers to use male pronouns to reference him, and that he would comply with the men’s grooming code.

The District responded to Roberts’s letter by holding a second meeting in November 2011, with which included Roberts’ his union representative.  Roberts repeated his requests: he wanted his coworkers to refer to him as a man, and he wanted to use the men’s restrooms.   His Captain said no, as far as the District was concerned, Roberts would not be referred to as a man or allowed to use the men’s restroom until he could provide official documentation of a name and sex change.
Later they decided that Roberts could informally use a man’s name for the time being, but that “all official and formal documents” would contain his female name until he obtained a court order and a name-change packet from human resources. Roberts was banned from the men’s restrooms until he had documented his sex change. Until then he was directed “to use a gender-neutral or single occupancy restroom,” not the female restrooms.

This week a Nevada Federal District Judge ruled that the District discriminated against Roberts under Title VII of the Civil Rights Act and state law when it barred him from using the men’s and women’s restrooms, but rather requiring that he use gender-neutral or single-person bathrooms. The decision appears to be the first time that a court has interpreted those protections to mean that transgender employees have a right to use bathroom facilities that match their gender identity.

Common Sense Counsel: Updating your handbook language to cover gender identification and sexual orientation language should be one of your first priorities, with updated training, deciding now on restroom solutions and finding a source for guidance when confusion reigns in your workplace. Transgender Discrimination is an EEOC litigation hot button issue for 2016-2017.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com.