Many Americans first came to know a transgendered person when Chaz Bono appeared on "Dancing with the Stars." For those who didn't tune in or follow other media on the subject, a person is transgendered if his/her self-identified gender identity differs from his/her biological or genetic gender identity.[1] Transgendered persons may actually undergo physical gender reassignment, or they may simply identify with a gender other than the one he/she was genetically assigned.

Why, you ask, is this the topic of a Labor & Employment blog? Well, because last week the EEOC decided to protect transgender status under Title VII.

On April 20, 2012, the EEOC opined that Title VII's prohibition against discrimination of the basis of an employee's physical gender includes protection on the basis of an employee's self-identified gender.[2] The opinion arose out of a complaint filed by Mia Macy, a transgender woman working as a police detective in Phoenix, Arizona. At the time she was still known as a male, having not yet transitioned to female. She applied for a job in San Francisco, presenting herself as a man during the initial telephone interview. Ms. Macy asserts that she was offered the position, subject to a clear background check.

During the background checking process, Ms. Macy advised that she was transitioning from male to female. Five days later, Ms. Macy received an email that the position was no longer available due to budget cuts. Ms. Macy was subsequently told that the position had not been eliminated due to budget cuts, but had instead been given to someone else who was farther along in the background investigation. Given the timing and inconsistent information, Ms. Macy believed she was discriminated against due to her gender identity and she filed an EEOC complaint thereafter.

The local EEOC office rejected her claim asserting that "claims of gender identity stereotyping cannot be adjudicated before the [EEOC]." After Ms. Macy appealed, the EEOC ultimately agreed that gender identity discrimination was merely another form of gender discrimination protected by Title VII.

Many commentators characterize this opinion as "groundbreaking" and "explosive," but it arguably just extends existing law and clearly directs field offices to recognize and process claims arising from sexual stereotyping, including transgender issues.

For over twenty years, the U.S. Supreme Court has recognized 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." The Court's 1998 Oncale[3] concerned a worker harassed for failing to conform to the masculine stereotype of an offshore oil rig worker. In its 1989 Price Waterhouse[4] decision, the Court addressed an employer's failure to promote a female who was encouraged to be less assertive and otherwise more feminine. Since Price Waterhouse, courts have widely recognized sexual stereotyping as a valid method for establishing discrimination "on the basis of sex" in many scenarios where individuals fail to act or appear in gender-conforming ways.

There are many cases recognizing discrimination and harassment "on the basis of sex" where the allegations arise out of failure to conform to sexual stereotypes. In fact, the EEOC analogized gender-based discrimination as very similar in this respect to religion-based discrimination, saying that while discrimination because one is a Jew or Christian is a forbidden, so is discrimination because one has converted from one faith to another. By extension of the analogy, the EEOC said that "converts" are protected in the gender arena, too.

With the EEOC's unequivocal guidance, it indeed gets better for America's transgendered and those not conforming to gender stereotypes.

Footnotes

[1] Gay and Lesbian Alliance Against Defamation, "GLAAD Media Reference Guide, 7th Ed." May 2010.

[2] US Equal Employment Opportunity Commission Decision, Mia Macy v. Eric Holder, Attorney General, Department of Justice, (Bureau of Alcohol, Tobacco, Firearms and Explosives), Agency, Appeal No. 0120120821 (April 20, 2012).

[3] Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

[4] Price Waterhouse v, Hopkins, 490 U.S. 228 (1989).

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