In a decision reversing nearly three decades of prior rulings, the Equal Employment Opportunity Commission (“EEOC”) has ruled that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” In doing so, the EEOC – the agency of the United States Government charged with the enforcement of federal anti-discrimination laws – has expanded upon the definition of discrimination “because of sex” expressly bringing transgender individuals within its purview.
In Macy v. Holder, the Complainant, Mia Macy, a transgender woman, had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency at its Walnut Creek crime laboratory. While still presenting as a man, and during a preliminary telephone conversation with the Director of the laboratory, during which Macy’s qualifications were discussed, the Director told her that she would be able to have the position “assuming no problems arose during [the] background check.” In a later conversation with the Director only a few weeks later, the Director reasserted that the job was hers pending the completion of the background check. Shortly thereafter, Macy informed “Aspen of DC” (a government contractor responsible for filling the position) that she was in the process of transitioning from male to female and requested that Aspen inform the Director of the Walnut Creek laboratory of this change. Approximately one week later, Macy received an email from Aspen stating that, due to federal budget reductions, the position at Walnut Creek was no longer available. Upon following up with an agency EEO counselor, however, she was told that the position had actually been filled with a different applicant who was the “farthest along in the background investigation.” Believing this reason to be a pretext for discrimination, Macy filed a complaint with the EEOC, which administratively adjudicates employment discrimination claims involving federal government employees and applicants. On her complaint form, Macy checked off “sex” and the box “female,” and then typed in “gender identity” and “sex stereotyping” as the basis of her complaint.
“As used in Title VII,” the EEOC found, “the term ‘sex’ encompasses both sex – that is, the biological differences between men and women – and gender.” Citing the United States Supreme Court’s landmark holding in Price Waterhouse v. Hopkins and its progeny, the EEOC held that Title VII bars discrimination not only on the basis of biological sex, but because of gender stereotyping, as well. The EEOC reasoned that “discrimination based on sex includes discrimination based on a failure ‘to conform to socially-constructed gender expectations.’” For example, the EEOC theorized that Macy could establish a case of sex discrimination by showing one of the following scenarios: (1) that she did not get the job because the employer believed that biological men should consistently present as men and wear male clothing; or (2) that she did not get the job because the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman. “Thus,” the EEOC found, “a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations.”
Impact on Employers
While the EEOC’s interpretation of Title VII is not binding in a court of law, the Courts often defer to it and therefore employers in both the public and private sector should take note of the Macy decision. In addition, while federal courts have taken different positions on the issue of transgender status discrimination, more recent decisions have agreed with the EEOC’s conclusions in Macy. Accordingly, employers should seriously consider revising their anti-harassment and discrimination policies so as to include gender identity and gender expression as protected characteristics. Moreover, employers should be aware of their own state discrimination laws that may address this issue. In New Jersey, for example, the Law Against Discrimination already prohibits discrimination based on one’s “gender identity or expression,” which is defined as “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.”
The attorneys in the Gibbons Employment & Labor Law Department are available to provide additional information and training with regard to employers’ efforts to maintain a discrimination and harassment-free workplace.