In a first-ever decision, the United States Equal Employment Opportunity Commission (“EEOC”) has recognized that discrimination against transgender employees and applicants is prohibited under Title VII of the Civil Rights Act (“Title VII”). This recognition occurred in the context of a discrimination charge filed by a transgender applicant for a ballistic analyst position with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).
Mia Macy applied for the position, met the qualification requirements and had been told that she would receive the position. At the time of her application, Macy identified herself as a male. Several months later, but before she was slated to start, Macy informed the ATF that she was transitioning from male to female. About a week later, Macy was told the position had been eliminated due to budget constraints. Later, she learned that the position was actually awarded to another applicant, allegedly because that applicant was further along in the background check process.
Macy filed an EEOC charge of discrimination claiming that the ATF refused to hire her because of her transgender identity. The ATF sought dismissal, arguing that Title VII prohibits discrimination based on gender, but not transgender identity. The EEOC disagreed, finding that Title VII’s prohibition against discrimination “because of sex” extends to discrimination based on an applicant’s or employee’s failure to comply with gender stereotypes.
This decision is not altogether surprising. For years, courts have broadly interpreted the “because of sex” language as prohibiting gender stereotyping discrimination, including discrimination based on sexual orientation. Yet, the Macy decision marks the first time the EEOC has explicitly stated its belief that Title VII prohibits transgender identity discrimination.
What does this mean for employers? The EEOC will no longer automatically dismiss charges alleging transgender identity discrimination. Instead, employers will be required to address those claims on their merits by articulating non-transgender-related reasons for a challenged action. Employers, therefore, should revise their equal employment opportunity policies to add transgender identity to the list of protected classifications and to discuss the prohibition against transgender identity discrimination during training of hiring managers, supervisors and employees.