[author: Carolyn Lam]
Executive Summary: The Equal Employment Opportunity Commission (EEOC) recently issued a decision stating that discrimination based on transgender status or gender identity constitutes sex discrimination under Title VII. The decision allows transgendered individuals to file workplace discrimination charges with the EEOC. See Macy v. Holder, Appeal No. 0120120821 (April 20, 2012).
Mia Macy, a transgender woman who presented as a man, had a telephone interview with the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives' ("ATF's") Walnut Creek crime laboratory for an available position. Macy was informed that the position was hers if she passed her background check.
A few months later, Macy informed ATF's Director that she was transitioning from male to female. Subsequently, ATF informed Macy the position she sought was no longer available because of budget cuts. Macy later discovered that ATF had hired another individual for the position.
Macy filed a formal EEO complaint with the AFT, alleging discrimination on the basis of her sex, gender identity, and sex stereotyping. The ATF's EEO office accepted Macy's complaint on the basis of sex and gender identity stereotyping. However, the ATF refused to process her gender identity stereotyping claim under Title VII and EEOC regulations, stating that gender identity discrimination claims cannot be adjudicated by the EEOC. Instead, the ATF stated that Macy's gender identity stereotyping claim would be processed under the ATF's "policy and practice." Macy filed an appeal with the EEOC, arguing: (1) the EEOC had jurisdiction over her entire claim; and (2) by separating her claims into "sex discrimination" and "gender identity stereotyping," ATF had essentially dismissed her gender identity and transgender discrimination claims.
In response to Macy's appeal, the EEOC found that claims of discrimination based on transgender status: (1) are cognizable as sex discrimination claims under Title VII; and (2) may be processed as EEOC charges.
According to the EEOC, Title VII's definition of "sex" encompasses both biological differences and cultural and/or social aspects associated with males or females. The EEOC cited to Price Waterhouse v. Hopkins in support of its determination that an employer discriminates on the basis of gender whenever it treats an employee differently for failing to conform to gender-based expectations. 490 U.S. 228 (1989).
The EEOC reversed the ATF's final decision declining to process Macy's entire complaint under Title VII and EEOC regulations and remanded the complaint to ATF's EEO office.
Employers' Bottom Line:
The EEOC's position on this burgeoning cause of action will lend strength to plaintiffs who seek to sue for gender identity-related claims of discrimination. Employers can expect courts to cite to the EEOC's opinion when evaluating claims from transgendered employees and employees suing for sex-based stereotyping.
If you have any questions regarding this Alert or other labor or employment related issues, please contact the author, Carolyn Lam, email@example.com, who is an attorney in our Birmingham office, or the Ford & Harrison attorney with whom you usually work.