In a landmark decision, the Equal Employment Opportunity Commission (EEOC) has determined that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. The case, Macy v. Holder, was brought by Mia Macy, a former male police detective who contends she was denied a job as a ballistics technician with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Agency”) on account of her decision to become a woman. The EEOC’s finding that Macy may proceed with this cause of action could have wider repercussions in the private sector.

Background

According to complaint, in late December 2010 or early 2011, Macy applied for the ballistics technician job as a contract employee with the Agency lab and was given oral assurances by the lab’s director that she would receive the job pending a background check. At this point, Macy still presented herself as a man. Macy asserted that the contractor responsible for filling the position contacted her to begin processing the necessary paperwork associated with the job. On March 29, 2011 Macy informed the contractor via email that she was in the process of transitioning from male to female. Five days later, the contractor relayed this information to the Agency, and on April 8, 2011, Macy was told that the position was no longer available due to budget cuts. She later discovered that the position had instead been filled by another person, ostensibly because that individual was farther along in the background check process. Macy alleged that this reason was pretextual, and that she was denied the job because of her decision to become female.

Macy had initially filed an Equal Employment Opportunity (EEO) claim with the Agency alleging both sex and gender identity discrimination. The DOJ has one system for processing claims of sex discrimination under Title VII, and another for adjudicating complaints of sexual orientation and gender identity discrimination. According to the complaint, the rights offered by this split process are not the same as those offered under Title VII and other EEOC regulations, including the right to request a hearing before an EEOC administrative law judge and the right to appeal a final Agency decision to the EEOC. In considering her claim, the Agency split her discrimination allegation into one “based on sex (female) under Title VII”, and another based on “gender identity stereotyping” outside of Title VII’s scope. Because Macy did not believe that the Agency would thoroughly investigate her complaint in this fashion, she filed an instant appeal with the EEOC, which, she contends, has jurisdiction over her entire claim.

EEOC’s Findings

Examining Title VII’s history and relevant case law, the EEOC concluded that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process.” The Commission clarified further:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.

With respect to transgendered individuals in particular, the EEOC explained that “[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’” Therefore, the EEOC concluded, "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." Macy, therefore, would be entitled to pursue with the Agency her entire claim of discrimination based on change of sex/transgender status and gender identity under Title VII.

Although this case involves employment discrimination at the federal level, the EEOC’s position would appear to apply to private sector employment as well. In its decision the EEOC takes the position that a claim of discrimination based on one’s gender identity does not create a new protected category under Title VII, but rather presents a different way of describing sex discrimination.

At the legislative level, lawmakers in 2011 reintroduced the Employment Nondiscrimination Act (ENDA) in both the House and Senate. This bill would, among other things, specifically ban employment discrimination based on an individual's actual or perceived sexual orientation or gender identity. Although ENDA has failed to progress this term, earlier this month Press Secretary Jay Carney reaffirmed President Obama’s support of this measure.

For more information on this decision, see Littler’s ASAP: The EEOC Opens the Door to Title VII Protection for Transgender Employees by Denise Visconti and Emily Chaloner.

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