The EEOC Recognizes a Cause of Action under Title VII for Transgender Discrimination

by Miller & Martin PLLC
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We are not sure how many of you have run into this situation in your workforce yet.  But we wanted to let you know in the event you do that the EEOC has recently confirmed that “transgender discrimination” is actionable under Title VII.
Previously, some courts had read Title VII as protecting transgender individuals – those who believe they were born a different gender anatomically than they truly are/were meant to be.  The EEOC’s recognition of transgender individuals as being entitled to the full protection of Title VII now opens the door to these individuals being able to file EEOC charges asserting discrimination on the basis of their transgender status, just as others have long been able to do on the basis of their race, religion or gender.
The specific charge giving rise to this recognition involved a (now) female veteran agent with the federal Department of Justice, Mia Macy, who had applied to be a ballistics technician with the Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF).  At the time she began the application process for this position in 2010, Ms. Macy was a man.  According to her charge, Ms. Macy was told in December of 2010 that “the position was hers” pending no problems in her background check.
In March of 2011, Ms. Macy e-mailed the contractor who was handling the hiring process for the ballistics position and who had previously notified her that they were working on her background check to tell them that she was currently in the process of transitioning from being a male to being a female.  She did this in order to also inform them of the name change she was applying for so this would not be confusing in the background check process.
Five days after sending this e-mail, Ms. Macy was informed by the contractor that funding for the position she had applied for had been pulled due to federal budget reductions.
Skeptical due to the close proximity in time between sending her e-mail and receiving this information, Ms. Macy contacted the ATF’s EEO counselor (the ATF’s equivalent of HR).  This person looked into the situation and informed Ms. Macy that the position had in fact been filled by another candidate and that the reason the ATF gave as to why this had happened was that the other candidate “was farther along in the background check process than she was” when they were notified of the funding cuts.
Ms. Macy then contacted the EEOC based on her belief that the reason she was given the  “budget reduction” explanation initially while the position in reality was filled by someone else was that the ATF did not want to put a transgender individual in it once she revealed that she was transitioning from being a male to a female.
The EEOC initially referred her claim to the Department of Justice’s own internal claims resolution process, stating that “claims of discrimination on the basis of gender identity cannot be adjudicated by the EEOC.”  Ms. Macy asked the EEOC to “reconsider” this decision, and the EEOC then tried to “split” her claim into a “gender discrimination claim based on gender stereotyping” (over which it did have jurisdiction) and a separate “gender identity discrimination” claim over which it did not.  Ms. Macy then appealed this decision through the EEOC’s internal appeals process.
It was in answer to this appeal that the EEOC stated that going forward it will accept “gender identity” discrimination claims as well as “gender stereotyping” ones.
The EEOC has not yet decided whether or not Ms. Macy has actually experienced gender identity discrimination.  It has simply at this point decided that Title VII does protect individuals from such discrimination such that it does have jurisdiction over claims regarding the same.   
Although the Macy charge was brought in the context of the EEOC’s federal sector EEO complaints process (since her charge was asserted against a federal agency), nothing in the EEOC’s sixteen-page decision detailing its reasons for accepting jurisdiction over this charge indicates that it is likely to draw a distinction between recognition of gender identity/transgender claims in this context versus its private sector complaints process.  “Title VII does not only prohibit discrimination on the basis of an individual’s biological sex. . . . .  Gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”  “Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . sex,’ and such discrimination therefore violates Title VII.”
It remains to be seen whether ALL federal courts will follow suit in deciding that Title VII covers such claims.  The Sixth Circuit (which includes Tennessee), the Ninth Circuit (which includes California), and the Eleventh Circuit (which includes Georgia, Alabama and Florida)  have already recognized “transgender discrimination” as being prohibited by Title VII in past lawsuits asserting such claims.
As always, if you have questions concerning this or any other labor and employment law matter, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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