The legal protections afforded transgender individuals in the workplace are relatively unclear, not to mention varied, across the country. Currently, sixteen states (and Washington D.C.), as well as numerous cities and counties, ban discrimination based on gender expression and gender identity. However, a federal bill, the Employment Non-Discrimination Act (ENDA), has been proposed and struck down regularly since 1994. If passed, the law would prohibit discrimination in employment on the basis of sexual orientation or gender identity. Similarly, on May 16, 2012, the New York State Senate struck down the passage of a similar statewide ban (for the fifth time).
Nonetheless, as previously reported here, recent decisions in the Courts of Appeals have increasingly recognized gender nonconformity in reference to transgender individuals as a form of sex discrimination protected by Title VII, but the courts have stopped short of allowing a claim of sex discrimination based solely on the fact that the individual is homosexual.
On April 20, 2012, the EEOC also put in its two cents worth and made clear its position on transgender discrimination in a decision which held the following: “[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.” In doing so, the EEOC, like the federal appellate courts earlier mentioned, found transgender protection to be an extension of sex stereotyping and gender non-conformity, first recognized in Price Waterhouse v. Hopkins.
In this claim, Mia Macy, a former soldier and police officer, alleged that she applied for and was offered a position with a government agency, pending a background check. At the beginning of the employment process, which included an interview, Ms. Macy presented as a male. However, later, during the background check, the agency discovered that Ms. Macy was transitioning from a man to a woman. Upon this discovery, the employer informed Ms. Macy that the job was no longer available, but Ms. Macy later found that the agency had hired someone else. Ms. Macy then filed a formal complaint with the EEOC in which she claimed that the agency denied her employment because of her status as a transgender individual. In a unanimous ruling, the EEOC recognized Ms. Macy’s claim as valid under Title VII’s prohibition of discrimination based on sex, thus giving her the ability to file a civil action.
This EEOC decision is a significant development for employers as the administrative agency has set forth its policy on the prohibition of transgender discrimination. Employers are reminded to make employment decisions based upon performance or requirements of the position and not based upon individuals’ gender.