By Jack B. HarrisonThe Equal Employment Opportunity Commission (EEOC) recently ruled that the Civil Rights Act protects transgendered employees from discrimination in the workplace. In the specific case, the EEOC said that Mia Macy, a transgendered woman, could proceed with a charge of gender identity discrimination against the Bureau of Alcohol, Tobacco, Firearms and Explosives. Macy claims that she was not hired by the Bureau after she announced she was transitioning from male to female.
This decision provides several takeaways that diligent employers should keep in mind when making employment decisions:
Discrimination based on gender identity equals sex discrimination—
The EEOC concluded that Title VII prohibits not just discrimination based on sex, but also on the basis of gender—for example—on the “cultural and social aspects associated with masculinity and femininity.” Consequently, employment decisions based on the transgender status of an employee could constitute gender discrimination.
The ruling represents a change of position for the EEOC in addressing discrimination claims brought by transgendered employees—
The EEOC had previously deemed claims of discrimination based on gender identity, or the transgender status of an individual, as not being actionable under Title VII. However, in the Macy decision, the EEOC has made clear that its decision in Macy was intended to expressly overturn those prior decisions.
Employers may need to revise workplace policies—
The Macy decision should serve as a warning to those employers who are not located in jurisdictions where gender identity was already protected prior to the Macy decision. Those employers should give consideration as to whether their company policies and training programs should be revised to address the new risk recognized by the EEOC.
The decision affects both public and private employers—
While the Macy case involved alleged discrimination in the government sector, the EEOC’s decision was not limited solely to the public sector. It appears that the EEOC’s decision is equally applicable to the private sector. As a result, private sector employers should be aware that the EEOC will consider discrimination against transgender employees or applicants to be prohibited by Title VII.