- Created on Saturday, 05 May 2012 12:02
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The Equal Employment Opportunity Commission (EEOC) recently ruled that claims of transgender discrimination are covered under Title VII’s gender discrimination provisions. Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012). This brings federal anti-discrimination law in line with Connecticut’s Fair Employment Practices Act (CFEPA), which already prohibits discrimination on the basis of gender identity or expression.
In Macy, a police detective applied for a job with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. At the time, Macy was known as a male. During the background check following her application, she notified the Bureau that she was in the process of transitioning from a male to a female. Shortly thereafter the Bureau informed her the job would no longer be filled. She was later told someone else, who was further along in the background check process, was hired for the job.
Macy filed a gender discrimination complaint with the EEOC claiming the Bureau’s stated reason for hiring someone else was pretextual, and the real reason was her transgender status. She checked off “sex” discrimination as the basis for her claim on the complaint form, and wrote in “gender identity and sex stereotyping” to further clarify her claim.
In finding her claim covered by Title VII, the EEOC stated, “the Commission hereby clarifies 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.” It went on to refer to the Supreme Court’s decision in Price Waterhouse v. Hopkins, in which the Court said that sex discrimination is not limited to discrimination because of biological sex, but also gender stereotyping, including the failure to act and appear according to expectations defined by gender. In Price Waterhouse, the Court found that Price Waterhouse’s statements that Hopkins should walk, talk and dress more femininely if she wanted to become a partner, were the types of sex stereotyping outlawed by Title VII. In essence, the Court stated that gender discrimination occurs any time an employer treats an employee differently for failing to conform to gender based expectations or norms.
In applying these principles, the EEOC said an employer discriminates when a transgender person has expressed his or her gender in a non-stereotypical fashion, or when the employer is uncomfortable that someone has transitioned, or is transitioning from one gender to another. In drawing an analogy from religious discrimination, the EEOC noted that discriminating on the basis of gender change is akin to discriminating against someone who converted from Christianity to Judaism. In that instance, an employer that claims it is not biased toward Christians or Jews, but only converts, would clearly be in violation of the law.
As a result of this decision, employers are advised to review their policies and practices, including employee handbooks, to make sure they comply with both Title VII and the CFEPA.