EEOC Recognizes Cause of Action for Discrimination Against Transgendered Employees
Described by both critics and proponents as “groundbreaking,” the Equal Employment Opportunity Commission ruled on April 20, 2012, that a complaint of discrimination based on gender identify, change of sex, and/or transgender status is recognizable as a cause of action under Title VII of the Civil Rights Act of 1964. In the underlying dispute, the complaining employee completed a telephone interview for a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) while she was still anatomically a male and indicated such on her initial application for the position. She was informed that, barring any issues with her background check, she would be afforded the position. During the pendency of the background check, the employee notified the ATF that she was in the process of transitioning from male to female. Shortly thereafter, she was denied the job.
In assessing the complaint, the EEOC had to determine whether the entirety of the employee’s claims, including the gender identity/change of sex/transgender portion, were covered by Title VII’s prohibitions or whether only the more traditionally recognized portion of the claims regarding “sex discrimination” fell under Title VII’s umbrella. The EEOC concluded that a transgender person who has experienced discrimination based on his or her gender identity may be able to establish a case of sex discrimination in a number of ways. In the case before it this included, for example, that the employee did not get the job because the ATF believed biological men should present and dress as men, or because the ATF was willing to hire her when it believed she was a male, but refused when it found out she was “transitioning” to another gender. All the employee was required to demonstrate was that the employer impermissibly used gender in making the employment decision.
The EEOC likened this type of gender discrimination to one of religious discrimination, quoting one federal court opinion as follows:
“Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that it 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 Title VII. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.”
Likewise, the EEOC concluded that intentional discrimination because of an employee’s “transgender,” if proven, is tantamount to discrimination “based on sex,” in violation of Title VII.
Though the EEOC’s decision against the ATF was obviously a finding in the federal employment context, its broad language and findings were not limited to the facts of the particular case and it is likely that the decision will apply to public and private employers alike. Certainly, it is anticipated that the decision will be utilized in enforcement proceedings and litigation with the EEOC, and in the investigation process through its many field offices. How, and to what extent, the federal courts will utilize the EEOC decision remains to be seen, though there are already a number of court opinions which evidence a willingness on the part of the federal courts to broaden their prior interpretations of “gender discrimination” to recognize causes of action for sex stereotyping and similar gender issues outside of the traditional notions of sex discrimination. Thus, employers should be cognizant of the EEOC decision and aware of current and future court interpretations which impact existing discrimination policies, practices, training and employment decisions.