[September 11, 2012] The U.S. Equal Employment Opportunity Commission (“EEOC”) has ruled that discrimination on the basis of gender identity, including transgender status, constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). According to the EEOC, gender-identity discrimination is “by definition” sex discrimination.
In light of the EEOC’s holding, issued in Macy v. Holder, we recommend that all employers take steps now to avoid gender identity discrimination claims. Recommended steps include revising personnel policies and practices to ensure that such protocols do not discriminate against applicants or employees who are undergoing a change in gender – commonly referred to as a “gender affirmation” or “gender transition” – or who otherwise do not conform to societal norms regarding gender identity. Significantly, 16 states, including Massachusetts, have enacted laws expressly prohibiting gender-identity discrimination, and the EEOC’s ruling is likely to be adopted by courts and EEO agencies in other jurisdictions that may be inclined to view gender-identity discrimination as a type of sex discrimination.
The complainant, Mia Macy, who was born a biological male, was a police detective in Phoenix, Arizona, with specialized training and certifications as a ballistics investigator. In December 2010, Macy applied for a position at a crime lab of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (the “Bureau”) in Walnut Creek, California. Macy allegedly was offered the position over the phone by the lab’s Director, contingent upon a background check.
In March 2011, while the background check was pending, Macy informed the Bureau that he was transitioning from male to female. Shortly thereafter, Macy was told that the position was no longer available due to budget cuts. However, soon after receiving this notification, Macy allegedly learned that another applicant had been hired for the position.
Subsequently, in accordance with the procedures applicable to federal-sector employees and applicants, Macy filed a charge of discrimination against the Bureau, alleging, in part, that its decision not to hire him was motivated by his gender identity and thus constituted unlawful sex discrimination under Title VII.
The Bureau declined to process Macy’s charge of gender-identity discrimination as a Title VII case on the basis that such claims are not cognizable under this statute. Macy appealed this decision to the EEOC, which reversed the Bureau and held that Title VII does encompass discrimination on the basis of gender identity.
In support of its conclusion, the EEOC relied heavily on the Supreme Court’s 1990 decision in Price Waterhouse v. Hopkins. In Price Waterhouse, the Court upheld a sex discrimination claim by a female employee who allegedly was denied promotion to partnership with an accounting firm because some of the firm’s partners viewed her appearance and mannerisms as insufficiently feminine. Noting that the Supreme Court ruled in Price Waterhouse that “an employer may not take gender into account” in its employment decisions, the EEOC concluded that this principle encompasses cases involving discrimination based on transgender status.
The EEOC also reviewed and analyzed various federal court decisions that have interpreted Price Waterhouse as protecting transgender persons. The agency concluded that while those court decisions have generally relied on a theory of gender stereotyping, Title VII’s prohibition on sex discrimination extends to all forms of discrimination based on gender identity, regardless of whether stereotyping is involved. As the EEOC stated:
When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.” . . . This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that “an employer may not take gender into account in making an employment decision.”
Further explaining its reasoning, the EEOC quoted from a recent federal court decision upholding a sex-discrimination claim asserted under Title VII by a transgender plaintiff:
Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine, too, that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
Thus, the EEOC concluded, “intentional discrimination against a transgender individual because that person is transgender is, by definition, ‘based on . . . sex,’” and is therefore unlawful under Title VII.
Implications And Recommendations For Employers
We are seeing a significant increase in client inquiries regarding transgender issues. For instance, recently we assisted a client with educating the entire workforce about welcoming a long-term employee who recently went through a gender affirmation and began presenting as a woman; we advised a client regarding an application process involving a transgender applicant; we counseled a client about responding to an employee’s decreased sales numbers due to customers preferring not to work with the employee after her gender transition; and, finally, we are seeing increased activity in private schools with transgender student issues.
The Macy decision indicates that in processing charges, litigating cases, and negotiating with employers, the EEOC (and many courts) will take the position that Title VII protects individuals who are transitioning from one gender to the other or who otherwise do not conform to societal gender-identity norms. Recent federal court decisions have demonstrated a trend toward recognizing Title VII as prohibiting gender-identity discrimination, and since federal courts often give significant weight to the EEOC’s interpretations of Title VII, the Macy decision appears likely to strengthen this trend.
Going forward, we recommend that all employers take steps to avoid discriminating against gender non-conforming and gender-affirmed persons, including the following:
• Revise existing equal employment opportunity policies, employment applications, harassment policies, and corresponding managers’ guides and employee handbooks to include gender identity or expression as a protected characteristic;
• Consider whether other workplace policies and practices (for instance, rest room designations and dress codes) may need to be updated. Case law in states with laws prohibiting gender identity discrimination has generally upheld an employer’s prerogative to require employees to adhere to reasonable workplace appearance, dress, and grooming standards so long as employees are permitted to appear, dress, and groom in accordance with their gender identity;
• Educate managers, supervisors, and human resources personnel regarding how to lawfully and appropriately handle gender-identity issues and respond to employees going through gender affirmations;
• Provide sensitivity training to all employees with regard to gender-identity issues; and
• Ensure that the supervisors and managers designated in an employer’s discrimination and harassment policies understand how to respond appropriately to complaints of discrimination based on gender identity.
Please feel free to contact us if you have questions about transgender issues in the workplace an on campus, the EEOC’s Macy decision, or any other discrimination or employment law issue.