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Employer Law Report

EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed

Posted in EEO

The Equal Employment Opportunity Commission (EEOC) decided on April 20, 2012 that discrimination against an employee on the basis that they are transgender was the equivalent of sex discrimination under Title VII of the Civil Rights Act of 1964. Macy v. Holder, EEOC Case No. 0120120821. Title VII protects employees against discrimination on the basis of a several protected classes, including sex. While many states and municipalities include transgender and sexual orientation as protected classes, Title VII has not been interpreted to protect these individuals on this basis alone. Individuals must show that the discrimination was based on their sex, which is often shown by arguing that stereotypes about genders played a role in the decision making.

The claimant in this case, Mia Macy, was a police detective in the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Macy, then male, applied for a transfer within ATF. During the background check for the transfer, Macy informed the investigator that he was transitioning to a female. Five days after ATF learned this information, Macy was informed that the position was no longer available due to budgetary restrictions. Macy later learned that someone else had been hired for the position. Macy was later told that the other individual was hired because the individual was further along in the background check process. Macy believed that the other individual was chosen because of discrimination against Macy as a transgender person.

Macy filed a complaint with the EEOC alleging discrimination on the basis of “gender identity, change of sex, and/or transgender status.” ATF argued that this was not a recognizable claim under Title VII. Macy appealed to the EEOC for a determination. Initially, Macy also claimed sex discrimination on the basis of stereotyping, but that claim later was withdrawn. Courts have long-held that sex stereotyping—that an individual does not conform to the stereotypes for the male or female gender—is actionable.

The EEOC concluded that discriminating on the basis of transgender status was discrimination on the basis of sex by definition. The EEOC likened it to religious discrimination by discriminating against a person for recently converting to a particular religion. What is significant about the EEOC’s decision is that transgender persons are protected, according to the EEOC, whether the discrimination is based on stereotyping, hostility, a desire to protect people of a certain gender, assumptions that disadvantage one sex, or the desire to accommodate other people’s prejudices or discomfort. The EEOC, however, was quick to point out that the EEOC does not believe that this view of Title VII creates a new protected class for transgender persons.

It is important to note that this decision is a decision of the EEOC only. It does not bind courts in any jurisdiction, and it remains to be seen whether courts, particularly federal courts of appeal, will agree or disagree with the EEOC’s decision and rationale. In any event, employers should be mindful of the EEOC’s expansive reading of Title VII with regard to sex discrimination because the EEOC is the federal government agency that handles employment discrimination charges.