Originally published on the Employer's Law Blog
The U.S. Equal Employment Opportunity Commission ("EEOC") recently issued a landmark ruling concerning the protections of transgender employees under Title VII (see here), a federal law which prohibits, among other things, sex discrimination in employment. According to the EEOC, complaints of discrimination based on gender identity, change of sex, and/or transgender status are cognizable under Title VII. This ruling is significant because it marks the first time the EEOC has provided guidance on this topic. The agency's view is consistent with that of a number of federal courts that have gradually redefined the meaning of "sex discrimination" over the past few decades.
The EEOC's decision clarifies that impermissible "sex discrimination" includes disparate treatment based on "sex stereotyping." It reinforces the notion that employers cannot discriminate against individuals (1) who express their biological gender in a non-traditional fashion; (2) because they have or are in the process of transitioning from one gender to another; or (3) because the employer dislikes that the person is identifying as a transgender person. The EEOC supported its view that sex "non-conformity" amounts to sex discrimination by analogizing it to religious discrimination. It argued that if an employer took adverse action against a person due to their failure to conform to religious stereotypes (i.e., employee identified as Christian but was of Muslim parents), this would undoubtedly amount to actionable religious discrimination. It is now clear that the agency (and some federal courts) view disparate treatment based on sexual identity as a form of prohibited sex discrimination under Title VII.
Although the EEOC's ruling involved a public employer, this decision is likely to shape its future enforcement and litigation activities with respect to private employers. Its expansive interpretation of what constitutes sex discrimination will likely impact the EEOC's review of private employers' policies and practices concerning harassment, training, prevention, dress/appearance standards, restroom access, and employee benefits. Moreover, many local and state laws already include legal protections for transgender employees independent of federal law. Accordingly, employers are well advised to review their policies and procedures to ensure that they incorporate or are neutral with respect to gender identity and expression and thus compliant with federal, state, and local laws.
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