EEOC Decides To Treat Transgender Discrimination As Sex Discrimination Under Title VII

On April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) published its decision in Macy v. Holder, in which it effectively updated its procedure for processing gender identity claims. In her complaint to the EEOC, Complainant Mia Macy stated that she had been denied employment at the Bureau of Alcohol, Tobacco, Firearms, and Explosives after disclosing that she was in the process of transitioning from male to female. Prior to her disclosure, she had completed the hiring process and had been told by the Director that she would be offered the position assuming there were no problems with her background check. Then, after disclosing her transgender status, she received an email telling her that, due to federal budget reductions, the position she sought was no longer available.

Ms. Macy then contacted her EEO counselor to express her concerns about this sudden reversal, and was given different reasons for not being hired. She was told that the position had not been cut from the Agency’s budget, but that they had decided to take a different individual who “was farthest along in the background investigation.” She claims that these reasons were pretextual, and that the Agency’s real reason for retracting its offer was that she was changing her gender from male to female.

Macy then filed a formal complaint form with the EEOC, checking the box marked “female” for sex, then typing in “gender identity and “sex stereotyping” as the basis of her complaint. The EEOC then issued a Letter of Acceptance, telling Ms. Macy that they would investigate her claim, but only the claim based on her gender identity (female); her further claims concerning gender identity stereotyping would no be investigated by the EEOC but through a separate process through the Department of Justice. Through her counsel, she then submitted a Notice of Appeal to the EEOC, arguing that the EEOC has jurisdiction over her entire claim, including the parts concerning gender stereotypes and transgender discrimination. In fact, she took the step of withdrawing the sex discrimination part of her complaint, the part that had been accepted, so that she would be in a position to appeal the Commission’s rejection of her gender identity discrimination claim.

In the end the EEOC agreed with the Complainant and reversed its initial decision. Citing recent case law, most notably the 1989 Price Waterhouse decision in which the U.S. Supreme Court interpreted the language in Title VII to imply that “when an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim,'” and has thereby unlawfully taken gender into account in making an employment decision. In short, sex discrimination includes discriminating against a person because they “act or appear in gender-nonconforming ways.” A complainant need not show that the employer acted on sex stereotypes in making a hiring decision; if it can be shown that the hiring decision was based on the person’s gender at all, then, unless gender is a bona fide occupational qualification (BFOQ) then it violates Title VII.

If you believe you have been subject to discrimination based on your sex or gender identity, please contact The Harman Firm, LLP.