EEOC Recognition of a Title VII Cause of Action for Transgender Individuals
Will courts follow the decision of the Equal Employment Opportunity Commission (EEOC) extending the reach of Title VII of the Civil Rights Act of 1964 to transgendered individuals?
In May, the EEOC took a dramatic step in extending the protections of Title VII of the Civil Rights Act of 1964 to transgender individuals on the basis of their “transgender” status. In a unanimous decision of the full five-member Commission, the EEOC decided that Title VII’s prohibition of discrimination based on “sex” also prohibits discrimination based on “gender identity,” effectively adding another protected class under Federal discrimination laws.
In Macy v. Holder, a “transgender woman” – a person who is born a male but identifies as a female – named Macy applied for a position with the crime laboratory of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (April 23, 2012). At the time of his application, Macy was still presenting himself as a male. The Director of the laboratory allegedly told Macy that he would receive the position if the results of his criminal background investigation were satisfactory. However, after the Bureau learned that Macy was transitioning from male to female, he was informed that the position had been cut due to a federal budget reduction. When Macy discovered that the Director had hired someone else for the position, he filed a complaint with the Bureau, alleging that he was discriminated against on the basis of his sex and his gender identity.
Macy brought two claims: sex discrimination and gender identity stereotyping. The Bureau referred only Macy’s sex discrimination claim to the EEOC, as it believed that his claim for “gender identity stereotyping” was not covered by Title VII and thus, outside the jurisdiction of the EEOC. The Bureau referred Macy’s gender identity claim to the Department of Justice, which has a policy against gender identity discrimination in the Federal government but provides fewer remedies than under Title VII. Macy appealed the Bureau’s decision to split his claims, asserting that the EEOC had jurisdiction over his entire complaint.
On appeal to the EEOC, the Commission agreed with Macy that it had jurisdiction over both claims because, according to its new interpretation, both asserted “sex” discrimination recognizable under Title VII. Citing the Supreme Court’s ruling in Price Waterhouse v. Hopkins, which held that an employer cannot discriminate against a woman who fails to conform to female stereotypes, the EEOC emphasized that Title VII’s ban on sex discrimination includes both discrimination based on biological sex and also “the cultural and social aspects associated with masculinity and femininity.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in Landgraf v. USI Film Products, 511 U.S. 244 (1994).
The EEOC further noted decisions of later Federal courts, such as Glenn v. Brumby, Schwenk v. Hartford, Smith v. City of Salem, and Schroer v. Billington, which recognized claims of sex discrimination against transsexuals under a sex stereotyping theory. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (affirming grant of summary judgment in favor of transsexual employee on her §1983 sex discrimination claim under the Equal Protection Clause because discrimination against someone on the basis of gender nonconformity is sex-based discrimination under the Equal Protection Clause and citing Price Waterhouse); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that transsexual firefighter stated a Title VII sex discrimination claim under the Price Waterhouse sex stereotyping theory, a Title VII retaliation claim, and a § 1983 sex discrimination claim under the Equal Protection Clause when his supervisors and other city officials conspired to force him to resign because of his feminine mannerisms and appearance and later suspended him in retaliation for pursuing legal remedies after he had been told about the plan to coerce him into resigning); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (citing Price Waterhouse and holding that transsexual who was sexually assaulted by prison guard could state a claim under the Gender Motivated Violence Act, which, like Title VII, prohibits discrimination because a person “fails to act in the way expected of a man or woman”); Schroer v. Billington, 424 F. Supp.2d 203 (D.D.C. 2006) (transsexual plaintiff was entitled to judgment under both a Title VII sex stereotyping theory and the plain language of the statute).
In holding that Title VII’s prohibition of discrimination based on sex includes discrimination based on transgender identity, the EEOC clarified that the various articulations of Macy’s claims were “simply different ways of stating the same claim of discrimination ‘based on . . . sex.’” When an employer discriminates against an individual because he or she is transsexual, this discrimination is “related to the victim’s sex” regardless of whether the discrimination is “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.” According to the EEOC, in each scenario, the employer’s “gender-based evaluation” violates the rule that generally, “an employer may not take gender into account in making an employment decision.”
Therefore, while transgender individuals may state a claim under Title VII by alleging that his or her employer is “stereotyping” based on gender, they are not required to do so. The EEOC concluded that, alternatively, Macy could show discrimination on the basis of “sex” simply by establishing that he did not get the job because the Director was willing to hire him when he believed Macy was a man, but not after learning that he was in the process of transitioning to a woman.
Addressing the argument that Congress did not intend Title VII to cover discrimination against transgendered persons, the EEOC quoted Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), and stated:
[S]tatutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discrimination] . . . because of. . . sex” in . . . employment. [This] . . . must extend to [sex-based discrimination] of any kind that meets the statutory requirements.
The Commission’s analysis closely tracked the reasoning of Schroer v. Billington, in which the Federal District Court for the District of Columbia held that the Library of Congress violated Title VII by rescinding a job offer to a transsexual who had applied for the position while still presenting as a man. 424 F. Supp.2d 203 (D.D.C. 2006). When the applicant later informed the hiring official of his intent to transition to a woman, the offer was rescinded. Concluding that the allegedly legitimate reasons for the Library’s decision were pretextual, the court held that the plaintiff was entitled to judgment under both a sex stereotyping theory and the plain language of the statute.
While the court applied the sex stereotyping theory, it also noted that a sex stereotyping claim asserted by a transsexual is difficult because “evidence of discrimination based on sex stereotypes may look a great deal like discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all federal courts have said is unprotected by Title VII.” Analogizing to religious converts, the Schroer court concluded that Title VII’s “because of sex” language includes discrimination because of a change in sex. In a comparison quoted by the EEOC, the court described a scenario where an employee was terminated for converting from Christianity to Judaism, and the employer admitted to bias only against converts but not against Christians or Jews. Given that discrimination “because of religion” would include discrimination because of changing religions, Title VII would prohibit such discrimination against the convert.
Although courts are not compelled to follow the decision of the EEOC in Macy v. Holder, judges considering Title VII claims brought by transgender applicants and employees undoubtedly will be influenced by the decision and judicial decisions such as Schroer. Therefore it is more likely that transgender discrimination claims will now survive dispositive motions. In advising clients on employment decisions involving transgender individuals, as attorneys we should consider the EEOC’s current position and advise clients not to discriminate based upon a person’s sex or gender.