Transgender Employees Protected Against Workplace Discrimination, EEOC Rules

In a recent decision, the Equal Employment Opportunity Commission ruled that the Civil Rights Act protects transgendered employees from discrimination in the workplace.

In its ruling, the EEOC said that Mia Macy, a transgendered woman, could proceed with a charge of gender identity discrimination against the Bureau of Alcohol, Tobacco, Firearms and Explosives. Macy claims that she was not hired by the Bureau after she announced she was transitioning from male to female.

The fight isn’t over for Macy, whose case has been sent back to the Bureau’s Office of Equal Opportunity for resolution. But for employers, the ruling – which went into effect on April 20 – provides an important clarification of discrimination laws.

For your reference, five takeaways:

1. Discrimination based on gender identity equals sex discrimination:

“The EEOC reasoned that Title VII prohibits not merely discrimination based on sex, but also on gender, i.e. on the ‘cultural and social aspects associated with masculinity and femininity.’ Thus, decisions based on transgender status constitute gender discrimination, according to the EEOC.” (Transgender Workers Are Protected by Title VII, Rules EEOC by Akerman Senterfitt)

2. The ruling represents an about-face for the EEOC:

“The Commission’s decision appears to represent a significant change in how the EEOC views claims of discrimination brought by transgender individuals. Historically, the EEOC deemed claims of discrimination based on gender identity, or the transgender status of an individual, not actionable under Title VII; but, as the Commission noted, the Macy decision expressly overturns those prior decisions.” (The EEOC Opens the Door to Title VII Protection for Transgender Employees by Littler)

3. The decision could lead to widespread recognition of transgender discrimination by the courts:

“It remains to be seen whether ALL federal courts will follow suit in deciding that Title VII covers such claims. The Sixth Circuit (which includes Tennessee), the Ninth Circuit (which includes California), and the Eleventh Circuit (which includes Georgia, Alabama and Florida) have already recognized ‘transgender discrimination’ as being prohibited by Title VII in past lawsuits asserting such claims.” (The EEOC Recognizes a Cause of Action under Title VII for Transgender Discrimination by Miller & Martin PLLC)
4. Employers may need to revise workplace policies:

“Employers in jurisdictions where gender identity was not already protected prior to the Macey ruling should consider revising company policies and training programs to address this new risk.” (EEOC Broadens and Clarifies Scope of Title VII Enforcement by Morgan Lewis)

5. The decision affects both public and private employers:

“Although the facts of the underlying case involved alleged discrimination in the government sector, the EEOC’s decision is equally applicable to the private sector. Thus, private sector employers should be aware that the EEOC will consider discrimination against transgender employees or applicants to be prohibited by Title VII” (Title VII Prohibition Against Discrimination Based on Sex Applies to Transgender Status by Lowenstein Sandler PC)

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