The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces employment discrimination laws, recently considered whether Title VII of the Civil Rights Act of 1964 protects transgender employees from workplace discrimination. The case involved an employee who claimed she wasn’t hired by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to work at a crime lab, despite being otherwise qualified for the job, after she revealed that she was in the process of transitioning from male to female. Let’s take a closer look at the case.
Facts
Mia Macy, a transgender woman, was working as a police detective in Arizona when she decided to relocate to California in December 2010 for family reasons. At the time, she hadn’t yet transitioned from male to female and was still known as a man. When she learned of an open position in an ATF crime lab for which she was qualified, she applied for the job. She was interviewed over the telephone, and the discussion covered her experience, credentials, salary, and benefits. The agency told her the job would be hers so long as she passed the required background check.
Two months later, when Macy called to check on the status of the position, the ATF reaffirmed that the job was hers pending completion of her background check. The agency sent her the preliminary employment paperwork in anticipation of hiring her. In March 2011, Macy notified the company performing the background check that she was in the process of transitioning from male to female and asked the company to notify the ATF of her name and gender change.
The ATF was notified, and five days later, Macy received an e-mail from the agency informing her that the position was no longer available because of federal budget reductions. She then contacted an equal employment opportunity (EEO) counselor, who told her that the position hadn’t been cut but that another person who was farther along in the background check process had been hired.
Macy filed a formal complaint with the ATF alleging she had been discriminated against because of her status as a transgender person. On the complaint form, she checked the box indicating her complaint was based on sex discrimination. She stated on the form that she is female and typed “gender identity” and “sex stereotyping” as the bases for her complaint. The ATF accepted the complaint for investigation but indicated that because claims of gender stereotyping couldn’t be adjudicated before the EEOC, the entire complaint would be processed according to a separate procedure at the U.S. Department of Justice (DOJ).
The procedure under which Macy’s claims were adjudicated is separate from the procedure under Title VII. The DOJ has one system for adjudicating claims of sex discrimination under Title VII and another system for adjudicating complaints of sexual orientation and gender identity discrimination. The process for the latter provides different rights and fewer remedies than the Title VII process.
Macy disagreed with the ATF’s classification of her complaint. She attempted to clarify that her charge was based on discrimination she suffered because of her status as a transgender woman and that the discrimination occurred because of sex, sex stereotyping, sex due to gender transition/change of sex, and sex due to gender identity. Following her attempt to clarify her claims, the agency concluded that it would process only the claim based on sex under Title VII, and the additional claims would remain with the DOJ to be adjudicated under its separate procedure.
Macy then submitted a notice of appeal to the EEOC contending that it had jurisdiction over all of her claims and that they shouldn’t have been separated. She argued that the ATF’s reclassification of her claims was a de facto dismissal of her Title VII claims based on gender identity and transgender status, and the agency hadn’t correctly identified all of her claims as falling under Title VII.
How Are Gender and Sex Different?
The EEOC explained that for purposes of Title VII discrimination claims, the term “sex” includes both the biological differences between men and women as well as gender, which includes the cultural and social aspects associated with masculinity and femininity. “Gender” and “sex” are used interchangeably for Title VII purposes, so when an employer discriminates against someone based on her transgender status or identity, it engages in disparate treatment related to her sex. That discrimination is actionable under Title VII.
The EEOC cited various definitions covering “transgender” individuals, including “persons whose appearance, behavior, or other personal characteristics differ from traditional gender norms.” The commission pointed out that a number of district courts have concluded that discrimination against a transgender person because of her gender nonconformity is appropriately categorized as sex discrimination under Title VII, whether it’s described as being based on “sex” or “gender.”
The EEOC also said that Macy’s complaint clearly showed that she believed she wasn’t hired because she disclosed her transgender status. According to the EEOC, the ATF shouldn’t have reclassified and separated her claims for processing because each of the various ways she described her claim (i.e., discrimination based on “sex stereotyping,” “gender transition/change of sex,” or “gender identity”) was simply a different way of stating the same claim of discrimination based on sex, which is clearly a cognizable claim under Title VII.
To illustrate the point that Macy’s claims of discrimination shouldn’t be adjudicated under different systems, the EEOC cited the following excerpt from a district court in Washington, D.C., which analogizes sex discrimination based on transgender status to religious discrimination:
Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
The EEOC expressly held that just as discrimination against religious converts based on the fact that they have converted and aren’t identified as belonging strictly to one religion or another would constitute actionable discrimination under Title VII, discrimination against someone who has changed or transformed her sexual or gender identity based on the fact that she is transgendered is also actionable under Title VII. Macy v. Holder, 2012 WL 1435995 (EEOC, 4/12).
Bottom Line
While it isn’t clear how the U.S. Eighth Circuit Court of Appeals, whose rulings apply to South Dakota employers, would rule on this issue, employers should be prepared. Most companies already have antiharassment policies and training procedures in place. Practically speaking, this decision means you should update your employee training programs to cover transgender applicants and employees. Making clear that you don’t intend to discriminate on the basis of gender is critical. (Transgender is different from sexual orientation.) Simply adding that language to your employee handbook, training protocol, and discussions about preventing harassment will help you encourage awareness within your workplace and defend against discrimination lawsuits.
Heather C. Knox is an employment law attorney with Lynn, Jackson, Shultz, & Lebrun, P.C., in Rapid City, South Dakota. She may be contacted at hknox@lynnjackson.com.
The EEOC did exactly the right thing in this instance. A hire must be based on the knowledge, skills, and abilities of the candidte and not on preconceived notions or religious edict of what is right or wrong in a comapny’s or an individual’s own belief systems. Unless and until we eradicate this kind (and all kinds) of discrimination from our employment processes we cannot claim to be a country that provides equality for all. And we cannot claim to hire the best and the brightest, olnly those who conform to somone’s prejudices.
The EEOC appeared to interpret the term “gender” appropriately with regard to those who act outside of gender norms, although this specific situation I don’t think was involved in congressional interpretation. Steve’s comment above is nice from a idealistic standpoint, however, you can’t legislate away all social issues and bar discrimination in all forms without causing the entire system to grind to a halt. Agreed, employment decisions should be based on qualifications, however, PETA people shouldn’t work in a butcher shop – against the nature and scope of the business, males don’t need to be waitresses at hooters either – again, nature and scope of the business. So, nice sentiment and idealism from Steve, but you can’t and shouldn’t protect every special interest social issue by allowing tort action. In ethics this is the controversy between the rights of the individual clashing with the overall good of society – a fine line to walk and a perilous one to legislate.