Federal Employers: EEOC Says Title VII Prohibits Discrimination Based on Gender Identity

A new law titled “An Act Relative to Gender Identity,” commonly referred to as the Transgender Equal Rights Bill, goes into effect in Massachusetts on July 1, 2012. It prohibits discrimination on the basis of gender identity in employment, public elementary and secondary schools, housing, credit and lending. It also adds gender identity as a new protected category under the Massachusetts non-discrimination statute, amends the Massachusetts hate crime statutes to include gender identity-related offenses and revises the public and charter school non-discrimination laws to include discrimination on the basis of gender identity as prohibited conduct.

With the enactment of this law, Massachusetts becomes the 16th state to treat transgender citizens as a protected class.

Background

Although transgender individuals previously have asserted claims for gender identity discrimination under the existing laws prohibiting gender and sexual orientation discrimination, the Transgender Equal Rights Bill provides more definitive and expansive protection. Under the new law, “gender identity” is defined as:

[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity shall not be asserted for any improper purpose.

The employment-related provisions of the law, which will be enforced by the Massachusetts Commission Against Discrimination, call for Massachusetts employers to take action to be ready for the July 1, 2012 effective date by taking the following steps:

  • Update policies. Employers should update their equal employment and anti-harassment policies to (1) add gender identity to the list of protected classes, (2) state that harassment and discrimination based on gender identity are prohibited, (3) inform employees how to report claims of gender identity-harassment, (4) inform employees about the employer’s policy to investigate such claims and take prompt and effective remedial action against any such harassment, and (5) let employees know about the employer’s prohibition on retaliation against any employee who makes such a complaint.
  • Conduct training. Managers and decision-makers must understand that the law prohibits employers from making employment decisions based on an individual’s gender identity. For example, it is unlawful for an employer to deny an individual a job opportunity due to his or her gender identity, or to treat an employee’s request for a leave of absence for medical treatment related to the employee’s gender-identity differently than it treats requests for other types of medical leave. The law also prohibits harassment based on gender identity. Employee training should focus not only on preventing harassing conduct, but also on building awareness and respect of a co-worker’s stated gender identity. Employees should be urged to use appropriate pronouns and other gendered language when referring to a transgender individual, such as referring to an employee who identifies as female as “she,” and not “he.” And employers must respond promptly to reports of discrimination or harassment based on gender identity, and implement appropriate resolutions.
  • Address logistics. A number of logistical issues often arise in the workplace for transgender employees, such as access to gender-segregated restrooms, and updating personnel records to reflect changes in an employee’s name and gender. Employers should be prepared to address these issues in advance.  

EEOC Holds That Title VII Prohibits Federal Employers from Discriminating on the Basis of Gender Identity

In a further expansion of the laws protecting transgender individuals from discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) recently held that federal employers are prohibited from discriminating against individuals under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., in the case of Macy v. Holder (April 20, 2012).

In that case, the plaintiff, a transgender woman, sued the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency claiming that the agency rescinded a job offer on the basis of her sex and transgender status.

The Department of Justice determined it would pursue the plaintiff’s discrimination claim only on the basis of sex under Title VII, and that her gender identity claim was not covered under Title VII. The plaintiff appealed to the EEOC, claiming that the EEOC had jurisdiction over her entire claim under Title VII. The EEOC ruled that it had jurisdiction over her entire claim, including her claim for transgender discrimination.

This decision means that the EEOC will find federal employers in violation of Title VII’s prohibition on sex discrimination if they discriminate against transgender individuals. Although this ruling applies to federal employers only, it is likely to lead to expanded protection for all transgender job applicants and employees. As a result, all employers should be prepared for this anticipated development.