EEOC Finds That Title VII Protections Include Transgendered Individuals

Volume 11, Issue 5
June 12, 2012

In ruling on an appeal of a federal agency's decision concerning a public employee's formal discrimination complaint, the Equal Employment Opportunity Commission (EEOC) found that discrimination based on gender identity, change of sex or transgendered status violates Title VII of the Civil Rights Act of 1964 (Title VII).  See Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives , EEOC Appeal No. 0120120821 (Apr. 20, 2012).  The EEOC's determination involved a claim brought by Mia Macy (Macy) against the Bureau of Alcohol, Tobacco, Firearms and Explosives (Bureau).  Macy, a former police detective who was trained and certified as a ballistics investigator, applied for a position with the Bureau.  Macy alleged that subsequent to an interview, she was told the job was hers pending a background check.  However, a few days after she informed the Bureau that she was in the process of transitioning from male to female, the Bureau notified her that the position was no longer available due to federal budget reductions.  However, Macy later learned that the position had not been cut, but another applicant had been hired for the job instead.  Utilizing the Bureau's internal EEO complaint process, Macy filed a complaint alleging she was unlawfully denied the position on the basis of sex, gender identity and sex stereotyping.  The Bureau accepted Macy's complaint, but decided that, unlike her claim "based on sex," her gender identity and sex stereotyping claims would be reviewed outside of the processes used to address sex discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII), which prompted Macy's appeal to the EEOC.  To resolve the dispute over what constitutes "sex discrimination" under Title VII, the EEOC accepted the appeal and determined that claims of discrimination based on gender identity or transgender status are indeed cognizable under Title VII's prohibitions against sex discrimination.  The EEOC reasoned that the terms "gender" and "sex" are often interchangeable, and that the term "gender" encompasses not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity.  In reaching this determination the EEOC relied on several court decisions - particularly the U.S. Supreme Court's landmark decision in Price Waterhouse v. Hopkins , 490 U.S. 228, 239 (1989).  The Price Waterhouse case held that Title VII bars "not just discrimination because of biological sex, but also gender stereotyping - failing to act and appear according to expectations defined by gender."  Indeed, the EEOC found that Title VII prohibits discrimination based on sex whether motivated by: hostility; a desire to protect people of a certain gender; assumptions that disadvantage men; gender stereotypes; or by the desire to accommodate other people's prejudices or discomfort.  The EEOC also clearly explained that while gender stereotyping is not itself an independent cause of action, it is a theory under which sex discrimination may be proven.  The EEOC's determination in Macy signals a significant change in how the EEOC will view discrimination claims filed by transgendered individuals from this point forward.  Its determination is binding on all federal agencies and departments and will likely be given deference by the federal courts in lawsuits against private employers.  Indeed, several federal circuit courts have already recognized gender stereotyping as prohibited discrimination under Title VII.  The Macy decision also follows on the heels of a recent change in Nevada's fair employment laws prohibiting employment discrimination on the basis of an individual's gender identity or expression, which became effective on October 1, 2011. See KZA's May 26, 2011 Employer Report.  Thus, the Macy determination serves as another important reason for Nevada employers to update their equal employment opportunity and zero tolerance policies, as well as provide refresher training to their human resources personnel, managers and supervisors.  If you have any questions about this recent EEOC decision or would like help updating your personnel policies and training programs, please feel free to contact the attorneys of Kamer Zucker Abbott.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.