Title VII does not, on its face, protect transgendered
workers from discrimination. Increasingly, however, courts have extended its protections under the umbrella of
Title VII's protections against sex-stereotyping-as-gender-discrimination, as
first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:
In saying that gender played a motivating part in an
employment decision, we mean that, if we asked the employer at the moment of
the decision what its reasons were and if we received a truthful response, one
of those reasons would be that the applicant or employee was a woman. In the
specific context of sex stereotyping, an employer who acts on the basis of a
belief that a woman cannot be aggressive, or that she must not be, has acted on
the basis of gender.
Earlier this week, the EEOC made what might be the most
significant pronouncement to date on the issue of the protection of the
transgendered as gender discrimination. Macy v. Holder [pdf] involved a transgender woman,
Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms
denied her a job after she announced she was transitioning from male to female.
In reinstating Macy's Title VII claim, the EEOC
That Title VII's prohibition on sex discrimination
proscribes gender discrimination, and not just discrimination on the basis of
biological sex, is important.... Title VII prohibits discrimination based on sex
whether motivated by hostility by a desire to protect people or a certain
gender, by assumptions that disadvantage men, by gender stereotypes, or by the
desire to accommodate other people's prejudices or discomfort....
Thus, we conclude that intentional discrimination against
a transgender individual because that person is transgender is, by definition,
discrimination "based on ... sex," and such discrimination therefore violates
While this opinion is not binding on courts, one cannot
overstate the significance of the fact that the agency responsible for
enforcing the federal EEO laws has made this broad pronouncement. Many
employers operate under the belief that they are free to discriminate on the
basis of sexual orientation or gender identity because Title VII lacks no
facial prohibition. As this case illustrates, that belief, no matter how
commonly held, might be mistaken.
The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria).
Yet, on this issue, we are on the same page. It strikes me as appalling that in
the year 2012 there are still minority groups against whom it remains facially
legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in
employment, 16 of which also prohibit gender identity discrimination;
another 140 cities and counties have similar laws. Many companies have also
made the private decision to prohibit this type of discrimination in their
For the uncovered, this EEOC decision signals that the
time is coming when this type of discrimination will no longer be an open
issue. I suggest you get on the bandwagon now, and send a signal to all of your
employees that you are a business of inclusion, not one of bigotry and
[Hat tip: The Proactive Employer / Stephanie Thomas]
Visit the Ohio Employer's Law Blog for more
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