May 11, 2012

EEOC Affirms Expanded Definition of Sex Discrimination

EEOC, Employment Discrimination, Employment Non-Discrimination Act, Equal Employment Opportunity Commission, Title VII, transgender

By Lisa Mottet, Transgender Civil Rights Project Director for the National Gay and Lesbian Task Force

Though garnering less attention than North Carolina's disheartening constitutional amendment to ban same-sex marriage and President Obama's monumental announcement to support same-sex marriage, another recent piece of lesbian, gay, bisexual and transgender (LGBT) news deserves significant attention.

In what is accurately hailed as a game-changing decision for the LGBT community, the Equal Employment Opportunity Commission ruled in April (Macy v. Holder) that transgender people are protected by Title VII’s prohibition on sex discrimination in the workplace.

The precedential decision involved Mia Macy, a transgender woman represented by Transgender Law Center who was all but officially hired by the Bureau of Alcohol, Tobacco and Firearms (ATF) when, after she told them she is transgender, she was told the position had been cut due to funding. ATF actually hired someone else and Mia lost her home as a result of the lost job opportunity.

When ATF discriminated against Mia she became part of the horrifying statistics on employment discrimination faced by transgender people. According to the National Transgender Discrimination Survey: 26 percent lost a job for being transgender; 50 percent were harassed at work; and many others face humiliation, have their privacy breached, and are denied access to appropriate restrooms. Overall, 78 percent have experienced mistreatment, harassment, or discrimination on the job.

In their ruling the EEOC carefully examined a string of cases — Schroer (D.C. Circuit), Glenn v. Brumby (11th Circuit), and Smith v. Salem (6th Circuit) — that have held that transgender people are, at least when sex stereotypes are in play and sometimes also when they are not clearly so, protected by sex discrimination provisions. It also relied on Supreme Court precedent stating that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group” in Price Waterhouse v. Hopkins as well as Oncale v. Sundowner Offshore Services, which held that same-sex harassment was prohibited by the plain language of Title VII even though it was not the “principal evil” Congress was concerned with when it passed the law.

However, some of the previous cases involving transgender people focused heavily on connecting the discrimination to sex stereotypes. The EEOC recognized that any time a transgender person is discriminated against it is somehow related to their gender, whether because “the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.” The EEOC explained these are all “simply different ways of describing sex discrimination.”

There is also a potential broader reach of the ruling. Indeed, the logic of the EEOC ruling and in the aforementioned federal cases can be fully applied to gay, lesbian, and bisexual people. In fact, in 2011, the EEOC issued two decisions in sex discrimination cases involving anti-LGB harassment. One involved a lesbian who was verbally harassed and one involved a gay man who was physically threatened as well as harassed after his wedding was announced in the local paper. These were less noticed because they were not precedential cases, but rather were issued as a matter of course by the staff of the EEOC (only a small percentage of cases go to the full Commission for review like Mia’s). The EEOC stated in both cases that the complainants alleged “plausible” sex stereotyping claims that could entitle them to relief - each argued that their harassers were motivated by the stereotype that men are supposed to marry and be romantically involved exclusively with women, and vice versa.

Although the LGB angle to this ruling is interesting, the most immediate practical effect of the ruling is for transgender people. Now all EEOC staff will take, mediate, and investigate claims of discrimination by transgender people, hopefully brokering immediate resolutions to many cases where discrimination is blatant. The ruling is fully binding on all federal agencies and their internal EEO processes, meaning that federal employees immediately have serious recourse for discrimination or harassment. If decades-old policy is followed, the interpretation should be binding on federal contractors as well. Law firms have already been putting out information to clients letting them know about the significance of the ruling.

A number of colleagues have asked me if this ruling is so monumental that it covers our goal of a federal law against gender identity discrimination. The quick answer to that is no. Although the ruling should be given at least some deference by federal courts, it is not the final say, and it cannot be guaranteed that this interpretation will ultimately be adopted by the Supreme Court. Secondly, and more importantly, a law would cause a cascade of cultural change that an EEOC ruling just cannot do by itself. If Congress would pass the Employment Non-Discrimination Act, it would cause employers throughout the country to update their non-discrimination policies with “sexual orientation” and “gender identity,” conduct training for hiring officers and supervisors, and would mean that “sexual orientation” and “gender identity” would be listed with the other protected characteristics on the “Know Your Rights” posters in the break room. Yes, legal recourse and being able to go to the EEOC are important, but when 78 percent of transgender people are experiencing mistreatment, harassment, or discrimination in the workplace, we need change on a much higher order — the kind of change that will only come with passage of a federal law.