On Friday, April 20, 2012, the EEOC issued a landmark ruling that intentional discrimination against a transgender individual is discrimination "based on … sex" and thus violates Title VII. Prior to this ruling, the EEOC generally declined to pursue discrimination claims that arose from transgender status or gender identity issues. Mia Macy, a transgender woman, applied for a position with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). At the time she applied, she was still presenting as a man. She was informed that she would be hired pending a background investigation. Ms. Macy submitted the paperwork for that investigation on March 28, 2011. On March 29, she sent an email informing the company responsible for the background check that she was in the process of transitioning from male to female, and asked the company to inform the ATF of the change. Shortly thereafter, she was informed that due to federal budget reductions, the position was no longer available. She later learned that someone else had been hired for the position.
Ms. Macy submitted a discrimination charge with the EEOC, selecting "sex" and "female" as the categories of discrimination. She typed in "gender identity" and "sex stereotyping" as the basis for her complaint. The EEOC declined to process her claim because gender identity and sex stereotyping were not within its jurisdiction. Ms. Macy's attorney appealed that determination, resulting in a landmark unanimous ruling from the EEOC that when an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment "related to the sex of the victim."
The EEOC's ruling marks a significant change in position on this issue, but it also recognizes a trend in federal courts facing these same questions. In late 2011, the Eleventh Circuit ruled that discrimination by the Georgia legislature against an employee who was transitioning from one sex to the other was sex discrimination in violation of the Equal Protection Clause. The Sixth Circuit has upheld a sex discrimination claim under Title VII brought by a transgender firefighter, and the Ninth Circuit allowed a case brought by a plaintiff who was victimized because of gender identity to proceed under the Violence Against Women Act.
What does this mean for employers? In California, Oregon and Washington, state laws have protected transgender employees by prohibiting discrimination based on gender identity and gender expression. For employers in those states, this ruling raises the stakes: transgender employees with discrimination claims can now bring both state and federal claims, instead of being limited to a state court action. For employers in all states, the EEOC ruling provides new protections and is an important reminder of the evolving law of sex-based discrimination.