An area of employment law that has been gaining increased attention from the Equal Employment Opportunity Commission (“EEOC”) in recent times are lesbian, gay, bisexual and transgender (“LGBT”) issues. In particular, the EEOC has recently adopted certain shifts in policies to find sexual orientation and gender identity coverage under Title VII. The rationale for finding such coverage is twofold: (i) the conduct at issue is discriminatory because of sex and (ii) the conduct is discriminatory because the employer uses gender stereotypes. Interestingly, the EEOC is not only reviewing LGBT Charges of Discrimination, but is actively soliciting the filing of such Charges.
Most recently, in Mia Macy v. Eric Holder (Appeal No. 0120120821, April 20, 2012), Macy, a male veteran police detective with an extensive law enforcement background, applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Macy was informed that he would be hired pending a background check. During the background check process, Macy informed ATF that he was in the process of transitioning from male to female. A few days later, Macy was notified that the position was no longer available due to budget reductions, when, in fact, another person had been hired for that position.
Macy filed a complaint with the EEOC against ATF alleging discrimination on the basis of “gender identity” and “sex stereotyping.” The EEOC found that employment discrimination against transgender individuals is a form of sex discrimination under Title VII and, in doing so, the EEOC clarified that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition . . . .”
Although not binding on courts, this decision and larger approach by the EEOC will be given great deference when courts assess the scope and breadth of discrimination claims based upon sex under Title VII. As such, employers should be mindful of this new development, stay abreast of local laws, maintain an open dialogue with employees on these issues, and provide information and training when appropriate to ensure that staff understand the implications of their actions with regard to members of the LGBT community.