The EEOC, in
a landmark decision, has
declared that Title VII protects transgendered employees under its prohibition
against sex discrimination. This ruling isn't too surprising considering that
gender stereotyping has long been considered sex discrimination. Here's what
VII's prohibition on sex discrimination proscribes gender discrimination, and
not just discrimination on the basis of biological sex, is important. If Title
VII proscribed only discrimination on the basis of biological sex, the only
prohibited gender-based disparate treatment would be when an employer prefers a
man over a woman, or vice versa. But the statute's protections sweep far
broader than that, in part because the term "gender" encompasses not only a
person's biological sex but also the cultural and social aspects associated
with masculinity and femininity.
EEOC went on
to say that sexual stereotyping isn't the only way that transgendered
discrimination can be illegal:
most courts have found protection for transgender people under Title VII under
a theory of gender stereotyping, evidence of gender stereotyping is simply one
means of proving sex discrimination. Title VII prohibits discrimination based
on sex whether motivated by hostility,11 by a desire to protect people of a
certain gender,12 by assumptions that disadvantage men,13 by gender
stereotypes,14 or by the desire to accommodate other people's prejudices or
discomfort.15 While evidence that an employer has acted based on stereotypes
about how men or women should act is certainly one means of demonstrating
disparate treatment based on sex, "sex stereotyping" is not itself an
independent cause of action.
EEOC went on
to give examples of how a transgendered individual might prove sex
Complainant could establish a case of sex discrimination under a theory of
gender stereotyping by showing that she did not get the job as an NIBIN
ballistics technician at Walnut Creek because the employer believed that
biological men should consistently present as men and wear male clothing.
Alternatively, if Complainant can prove that the reason that she did not get
the job at Walnut Creek is that the Director was willing to hire her when he
thought she was a man, but was not willing to hire her once he found out that
she was now a woman-she will have proven that the Director discriminated on the
basis of sex. Under this theory, there would actually be no need, for purposes
of establishing coverage under Title VII, for Complainant to compile any
evidence that the Director was engaging in gender stereotyping.
part I found the most interesting, and I thought the analysis was spot-on. EEOC
compared discrimination against transgendered employees to religious
discrimination against a convert:
an employee is fired because she converts from Christianity to Judaism. Imagine
too that her employer testifies that he harbors no bias toward either
Christians or Jews but only 'converts.' That would be a clear case of
discrimination 'because of religion.' No court would take seriously the notion
that 'converts' are not covered by the statute. Discrimination "because of
religion" easily encompasses discrimination because of a change of religion.
Title VII in this manner does not create a new "class" of people covered under
Title VII-for example, the "class" of people who have converted from Islam to
Christianity or from Christianity to Judaism. Rather, it would simply be the
result of applying the plain language of a statute prohibiting discrimination
on the basis of religion to practical situations in which such characteristics
are unlawfully taken into account.
does this all mean? How does it affect the rights of transgendered employees?
EEOC is not a court and it isn't Congress, so it can't make law. The opinion
gives us a glimpse as to how EEOC will view charges of discrimination brought
by transgendered employees. That means transgendered employees will have an
easier time convincing EEOC to find "cause" for their charges of
discrimination. But that doesn't mean they necessarily win.
Once EEOC finds cause (or that they're unable to determine whether or not cause
exists), the employee will still have to sue if the employer doesn't settle.
That means the courts could decide differently than EEOC. It happens all the
time that courts disagree with EEOC's world view.
This decision is a major step in the right direction. The only way to be sure
of an outcome will be if Congress decides to clarify Title VII one way or the
other, or if the Supreme Court rules on this issue. In the meantime, for now we
can assume that transgendered employees have some rights under Title VII.
See more employment law posts on Donna Ballman's blog, Screw You Guys, I'm Going Home.
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