Illinois Appellate Court Rules in Favor of Transgender Employee on Bathroom Use
Author: Emily Scace, XpertHR Legal Editor
August 20, 2021
Employers must allow employees to use bathrooms corresponding with gender identity, an Illinois appellate court has ruled. The case, Hobby Lobby Stores, Inc., v. Sommerville, held in favor of a transgender employee of Hobby Lobby who was denied the use of the women's bathroom. The court also upheld the state Human Rights Commission's award of $220,000 in damages for emotional distress.
After undergoing a transition from male to female, Meggan Sommerville formally informed Hobby Lobby of her female identity and her intent to begin using the women's bathroom. While Hobby Lobby changed her personnel records and benefits information to reflect her female identity, it refused to allow her to use the women's bathroom, even after she provided documentation that included her updated driver's license, Social Security card, name change court order and a letter from her medical providers.
Sommerville's coworkers at the store were ordered to report her if she tried to use the women's bathroom in violation of Hobby Lobby's policy, and on one occasion she was given a written warning for entering the women's bathroom. Although Hobby Lobby eventually installed a unisex bathroom, Sommerville testified that this did not alleviate her feelings of discrimination based on her transgender status.
The court held that Hobby Lobby's actions violated the Illinois Human Rights Act's (IHRA's) prohibition on discrimination based on sex and sexual orientation, which the Act defines to include gender identity, rejecting Hobby Lobby's contention that sex is an immutable characteristic. Hobby Lobby itself recognized Sommerville's gender identity in other ways, such as its personnel records, the court noted, undermining this line of reasoning.
Although the IHRA allows sex-segregated restrooms, the opinion explained, denying an employee access to the bathroom that corresponds to their gender identity is unlawful discrimination based on transgender status. The existence of the unisex bathroom "cannot cure its unequal treatment of Sommerville with respect to the women's bathroom," the court emphasized. "If every employee and customer except Sommerville may use either the unisex bathroom or the bathroom corresponding to their sex, but Sommerville's choices are limited to the unisex bathroom or a bathroom that does not correspond to her sex, Hobby Lobby is still discriminating unlawfully."
The Illinois decision follows on the heels of an Indiana federal district court decision dismissing the retaliation claim of a teacher who resigned out of objection to a school policy requiring teachers to address transgender students by their chosen names and pronouns. In addition, the federal Equal Employment Opportunity Commission (EEOC) recently issued guidance stating that employers may not deny an employee equal access to a bathroom, locker room or shower that corresponds to the employee's gender identity.