In Labor and Employment, Litigation, News & Updates

On April 20, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued its decision in Mia Macy v. U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (“Bureau”), in which it changed course from prior decisions and found that a claim of discrimination based on transgender status can be brought under Title VII’s sex discrimination prohibition.

Mia Macy, a transgender female, alleged that, while she was still presenting as a man, she had applied for a position at a crime laboratory. The director who interviewed her over the telephone told her on two occasions that, if no problems arose during her background check, she would have the position. Approximately two months after her background check had started, Ms. Macy asked the contractor responsible for filling the position to inform the Bureau that she was in the process of transitioning from male to female. Five days later, the contractor told Ms. Macy that the position was no longer available due to federal budget reductions. Approximately one month later, Ms. Macy contacted the Bureau’s Equal Employment Opportunity (“EEO”) officer. The EEO officer told her that the position had not actually been cut, but that it had been filled by the person who was farthest along in the background check. Ms. Macy filed her charge of discrimination with the Bureau’s EEO office, alleging that she had been discriminated against on the basis of her sex (female), and on the basis of her “gender identity” and “sex stereotyping.”

Without deciding the merits of her charge, the EEOC addressed the procedural issue of whether the claim that Ms. Macy was discriminated against on the basis of sex could be treated differently than her claims of discrimination on the basis of “sex stereotyping, gender transition/change of sex, and gender identity”. The EEOC cited the recently decided Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) [which was reported in this blog five months earlier] to state that discrimination on the basis of gender stereotyping is banned by Title VII. The EEOC explained that, if Title VII only prohibited discrimination the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman and vice versa. Instead, the EEOC reasoned that gender is intended to encompass not only biological sex, but also cultural and social aspects associated with masculinity and femininity. The EEOC cited court opinions and found that discrimination against a transgender person is related to the sex of the person regardless of whether: 1) the person is expressing gender in a non-stereotypical fashion; 2) the employer is not comfortable with the fact that the person has transitioned or is transitioning; or 3) the employer does not like that the person is identifying as a transgender person.

The EEOC began by noting that the term sex covers both biological differences and other gender differences. Referring to a seminal Supreme Court decision finding discrimination against a woman who was told she did not “act like a woman,” the EEOC concluded that this is no different from discrimination against a transsexual person who fails to act or identify with the gender assigned to him or her at birth. The EEOC also quoted the Ninth Circuit Court of Appeals, which found that discrimination against transgender females – who as anatomical males whose outward behavior and inward identity did not meet the social definition of masculinity – was actionable sex discrimination.

The EEOC pointed out that the label “transgender” is not fatal to a claim of sex discrimination, because the discrimination is based on gender non-conformity. The EEOC reasoned that evidence of gender stereotyping is just one means of proving that gender played a part. In other words, while the law contains no protected class of transgender persons, federal law already protects this group from discrimination whether motivated by: 1) hostility; 2) a desire to protect people of a certain gender; 3) assumptions that disadvantage one gender; 4) gender stereotypes; or 5) the desire to accommodate other people’s prejudices or discomfort.

Ms. Macy could present a claim that she was not hired based on gender stereotyping – because the employer believed that biological men should consistently present as men and wear male clothing. Alternatively, her claim could be based on sex without regard to gender stereotyping – the employer was willing to hire her when it thought that she was a man, but not when it found out that she was a woman.

Interestingly, the EEOC pointed out that discrimination against transgender persons is no different from discrimination against a religious convert because an employer believes that persons should not change religions. Essentially, discrimination because of gender encompasses discrimination because of a change of sex.

The EEOC’s decision is significant because it reverses the EEOC’s position to conform to recent higher court decisions on this issue. In light of this decision, employers should consider amending their policies and procedures to protect employees against discrimination on the basis of gender identity and expression.

Author(s): Alexander L. Palenzuela-Mauri

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