Last Thursday, the U.S. Office of Special Counsel determined that the Army discriminated against a male to female transgender employee by consistently referring to her with male pronouns, restricting her bathroom use, and refusing to give her work. The Washington Post reports that Tamara Lusardi, a veteran and civilian Army software specialist, was reportedly called "he" and "it" after she transitioned from male to female in 2010 and . Regarding the restriction on her use of the bathroom, the Army contended that other female employees felt uncomfortable with her presence in the bathroom. The Office of Special Counsel responded that co-worker preference cannot alone justify workplace discrimination.
The decision is another example of how transgender persons are finding increasing protection in employment anti-discrimination laws. The decision is also remarkable for another reason: Army officials appear to have at least attempted to treat Ms. Lusardi's transition respectfully. According to the report, one official told her to mindful that some employees did not understand what she had gone through and why she used female restrooms; this same official, while expressing concern for the comfort of co-workers, consistently expressed a desire for Ms. Lusardi to be treated with fairness and respect. As this case shows, the good intentions of an employer are not enough. Discrimination does not require evil intent; it simply requires treating an employee differently on the basis of a protected characteristic. Even when employers do this for benign reasons, they still violate the law.