The Equal Employment Opportunity Commission (EEOC) recently decided that workplace discrimination on the basis of gender identity, a change of sex and/or transgender status constitutes discrimination on the basis of sex, which is prohibited by Title VII of the Civil Rights Act of 1964. Title VII is one of the federal anti-discrimination statutes.
Mia Macy had been told by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that she would be hired to a position with ATF barring any issues with her background check. While ATF conducted the background check, Macy revealed that she was in the process of transitioning from male to female. ATF then told Macy the job was no longer available, yet hired another person for the position. Macy filed a complaint with the EEOC.
The EEOC determined that the term “sex” encompasses both the biological differences between men and woman, as well as gender differences. Title VII thus bars not just discrimination on the basis of biological sex, but also on the basis of gender stereotyping—targeting someone for failing to act and appear according to expectations defined by gender. If an employer intentionally discriminates against an applicant or employee because he or she is a transgender, such discrimination is by definition unlawful sex discrimination.
The EEOC made its determination in the context of an administrative determination of a federal complaint. It is not binding on the courts, but may well be given great deference by the courts should sex discrimination claims based on transgender status be brought in court. Additionally, some courts have already found that Title VII gives some protection from discrimination to transgender individuals. The federal appellate court governing Wisconsin, however, has not decided a case on this topic to date.
In the aftermath of the EEOC’s decision, employers should review their employment policies and practices and consider revising them to conform with the EEOC’s decision. In some instances, employers may have to create new policies. The policies/procedures to consider include:
- EEO, non-discrimination and harassment policies;
- Pre-employment screening policies;
- Employee codes of conduct;
- Dress codes and appearance policies;
- Use of pronouns;
- Procedures to change information, e.g., personnel records, to reflect gender change identity; and
- Policies regarding use of restrooms, locker rooms and other gender-specific facilities.