U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Apuleius Hillier, Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120150248 Agency No. IRS140571F DECISION Complainant filed an appeal with this Commission from the Agency's decision dated September 18, 2014, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, we REVERSE the Agency's dismissal of this complaint and REMAND it to the Agency for an investigation. ISSUES PRESENTED Did the Agency properly frame Complainant's claim as a claim of disparate treatment instead of a claim of harassment? Did Complainant state a claim of harassment? BACKGROUND Complainant, a transgender female, works as a Revenue Officer, GS-13, in the Agency's Richmond, Virginia facility. Complainant is a member of an Agency employee organization named Christian Fundamentalist Internal Revenue Employees (CFIRE) that meets weekly on Agency property to conduct Bible-study discussions. According to the record, CFIRE formed in response to employees' disagreement with the Agency allowing an employee organization forum for gay, lesbian, or bisexual employees. See "CFIRE - Our History." On an unknown date, Complainant informed the CFIRE leadership officials that she was transgender and identified as a female, but that when she attended the group meetings, she presented as a male. On June 10, 2014, Complainant sent the President of CFIRE an email stating that she believes Jesus wants her to be honest with herself and her coworkers, and asking if she could attend their weekly meetings "in the attire of the gender I believe I am: female." Complainant proposed first doing this during the last June meeting when she was scheduled to give a presentation on verses from the New Testament. The CFIRE President responded via email on June 18, 2014, stating, "I will have to stand that I cannot allow you to speak dressed as a woman." The President stated that this is the consensus of the Board of CFIRE. On July 1, 2014, the President of CFIRE sent out a calendar for the Bible Studies and presentations, and asked if anyone was willing to present the next day. Complainant replied that she would like to present on a play she recently saw and discuss Judas' role in God's plan, and what it means for Christians today. The President responded "... at this point I cannot allow you to present" and "I cannot allow the CFIRE platform to be used to promote your transgender lifestyle. That may not be what you want to present but I have to err on the side of caution." Complainant responded that she was not planning to present on anything related to transgender issues nor would she present dressed as a woman. Complainant's request to present was still denied. On August 7, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the basis of sex (female) when the President of CFIRE refused to allow her to give a presentation to a Bible study meeting dressed as a woman. On September 18, 2014, the Agency dismissed the complaint for failure to state a claim. The Agency found that the CFIRE President, not Agency management, prevented Complainant from attending meetings and presenting as a woman; therefore, his actions were not the acts of the Agency. The Agency concluded that the complaint must be dismissed for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1). CONTENTIONS ON APPEAL On appeal, Complainant contends that the dismissal was inappropriate, and that the Agency should be held responsible for the discriminatory actions taken by members of an Agency-supported employee organization. Complainant contends that the treatment by the employee organization and the inaction by the Agency have resulted in her feeling like a second-class employee. In opposition to the appeal, the Agency contends that it correctly concluded that the actions of an employee organization were not the acts of the Agency, and as a result the complaint should be dismissed. The Agency further contends that CFIRE's actions were an exercise of religion, and that requiring CFIRE to comply with the applicable nondiscrimination regulations and policy would impose a substantial burden on CFIRE's exercise of religion. ANALYSIS AND FINDINGS As an initial matter, we note that the Agency improperly framed Complainant's claim as one of disparate treatment and did not frame her claim as a claim of harassment. A fair reading of the record reveals that Complainant alleged that she was subjected to a hostile work environment when the President of CFIRE would not allow her to attend meetings and give presentations dressed as a woman, consistent with her gender. This finding is supported by the EEO Counselor's Report, wherein the EEO Counselor checked off the "Harassment (Non-sexual)" box after Complainant informed the Counselor that she believed she was subjected to harassment. We note that the form used for the formal complaint did not provide Complainant with a similar "harassment" option to select. We note that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. Harris, at 116. The trier of fact must consider all of the alleged harassing incidents and remarks, and the complainant's allegations must be construed in the light most favorable to complainant, in order to determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). As discussed further below, we find that Complainant's complaint states a viable claim of harassment. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). The Commission has held that discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex." Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). An "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the Complainant subjectively perceives it as such. Harris, at 21-22. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); see Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Jewell v. U.S. Postal Serv., EEOC Request No. 0120092132 (June 22, 2010). The trier of fact considers the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris, at 23. Here, Complainant alleged that she was subjected to harassment when on June 18, 2014, the CFIRE President informed her that she will not allow Complainant to attend meetings or present to the group dressed as a woman. Further, on July 1, 2014, the CFIRE President told Complainant that she could not present to the group at all, even on non-transgender related topics and dressed as a man, because she did not want the CFIRE platform to be used to promote a "transgender lifestyle." We find that not allowing someone to dress as the gender with which they identify is severe enough to constitute a hostile work environment, as a reasonable person would find it hostile or abusive. The CFIRE President's actions are analogous to someone not allowing a cisgender1 female to dress as a woman, or not allowing a cisgender male to dress as a male. Not allowing an employee to dress as the gender with which they identify and forcing them to dress as a gender with which they do not identify can be humiliating and dehumanizing, and it certainly unreasonably interferes with an employee's work environment. Further, not allowing an individual to present on any topic simply because that individual is transgender causes further alienation and reasonably interferes with an employee's work environment. Finally, the CFIRE President's use of the term "transgender lifestyle" can reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently. Therefore, we find that this complaint states a claim of sex based harassment. In its effort to support the dismissal of this complaint, the Agency asserts that the actions of the employee organizations were not the actions of the Agency; therefore, Complainant failed to state a claim. We note that the Agency's analysis is in the context of a disparate treatment claim, and not within the correct context of a harassment claim. In a harassment claim, an Agency can be liable for the actions of coworkers. Here, CFIRE's officers and members are Agency employees and Complainant's coworkers. If, after an investigation, it is determined that CFIRE and/or its officers subjected Complainant to harassment, the Agency may be liable if they knew of the harassment and failed to take immediate and appropriate corrective action. See 29 C.F.R. §1604.11(d). Additionally, the actions of CFIRE were related to Complainant's employment. CFIRE is an employee organization created and recognized under the Agency's Employee Organization Policy, and sponsored by an executive member of the Agency. In accordance with this policy, employees of the Agency were permitted to organize as a group and use Agency facilities, meeting rooms, interoffice mail, and Agency newsletters. CFIRE members were also permitted to attend conferences and receive compensation by the Agency for travel expenses. As a result, any alleged discrimination from CFIRE and its officers or members is reasonably related to Complainant's employment with the Agency. We find that this complaint states a viable claim of harassment and dismissal was not appropriate. Finally, we address the Agency's contention that CFIRE's actions were an exercise of religion, and that requiring CFIRE to comply with the applicable nondiscrimination regulations and policy would impose a substantial burden on CFIRE's exercise of religion. Even if the Agency had standing to raise a claim regarding religious accommodation, an employer is not required to incur more than a de minimis burden to provide religious accommodation. See EEOC Compliance Manual, Section 12: Religious Discrimination, EEOC No. 915.003 (July 22, 2008), at Sec. 12.IV, "Reasonable Accommodation." An accommodation that subjects a coworker to a hostile work environment imposes more than a de minimis burden on an employer. Id., at n. 153 ("[A]n employer need not accommodate an employee's religious beliefs if doing so would result in discrimination against his co-workers or deprive them of contractual or other statutory rights." Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004)). With regard to this case, we note that the Commission has found that an Agency cannot discriminate, harass, or allow others to harass an employee based on his or her gender identity, as that states a viable claim of sex discrimination under Title VII. Macy, supra; Lusardi v. Dept. of Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015); Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992 (May 21, 2013). As we noted in Lusardi, supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort. Id. Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome. Id. Therefore, we find that the Agency is required to address Complainant's claims of coworker harassment and cannot justify ignoring such claims because of the desire to accommodate the discomfort of others. CONCLUSION After a review of the entire record, we find that the Agency erred when it dismissed this complaint for failure to state a claim. We find that this complaint states a claim of sex based harassment, and we REMAND the complaint for further processing. The Agency is ORDERED to comply with our Order below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Hadden'ssignature Carlton M. Hadden, Director Office of Federal Operations April 21, 2016 __________________ Date 1 Cisgender is a term used to describe an individual whose gender identity matches the gender assigned to them at birth. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150248