On April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) held that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is a cognizable claim of sex discrimination under Title VII (Macy v. Holder, EEOC, Appeal No. 0120120821). The EEOC’s decision is in line with several Federal Circuit and District Court opinions in recent years finding transgendered individuals protected by Title VII.
Macy, a police detective with the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency (ATF), sought a transfer from Arizona to California. In January 2011, while still identifying herself as a man, Macy spoke with the Director of a California ATF crime lab about an open position at the lab. The Director allegedly indicated to Macy the job was hers, subject to a background check.
Before her background check cleared, Macy notified the Director that she was in the process of transitioning from male to female. Within a few days of providing this notice, Macy was told that the position was no longer available due to budget reductions. When Macy pursued the issue with an ATF counselor, she learned that the position had actually been filled by another candidate.
Macy then filed a complaint of sex discrimination with the agency. Her complaint was initially dismissed on the basis that Title VII did not cover claims of “gender identity” and “sex stereotyping.” On appeal, the EEOC disagreed, reasoning that Macy’s complaints fit within the category of “sex discrimination.” According to the EEOC, sex discrimination “occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”
The EEOC went on to note, however, that it did not intend to create a new “protected class” for transgendered people by virtue of its holding. Rather, the agency explained that discrimination against an individual because he or she is transgender “is, by definition, discrimination based on sex” since Title VII “encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”
Employers should be mindful that civil rights laws prohibit them from treating applicants and employees differently not just based on biological gender, but also the characteristics and social norms associated with gender.