The EEOC Opens The Door To Title VII Protection For Transgender Employees

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) recently ruled, in what many have described as a ground-breaking decision by the Commission, that a complaint of discrimination based on "gender identity, change of sex, and/or transgender status" is cognizable under Title VII of the Civil Rights Act of 1964 (Title VII).1 Previously, the EEOC had ruled to the contrary.2

In this case, the complainant, Mia Macy, who completed a telephone interview for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (Agency) in December 2010 while she presented as a man, was told the position was hers barring any issues with her background check. While her background check was being conducted, Macy notified the Agency that she was in the process of transitioning from male to female.3 Five days later, Macy was told the position no longer was available; another person was hired for the position soon thereafter.4

The EEOC Complaint

Macy filed a complaint with the Agency on June 13, 2011. In her complaint, Macy checked the box for "sex" as the basis of her discrimination claim. In addition, Macy typed onto her complaint form that "gender identity" and "sex stereotyping" also formed the basis of her complaint against the Agency. Macy further explained in her complaint that she had been discriminated against on the basis of her "sex, gender identity (transgender woman) and on the basis of sex stereotyping."

The Agency issued a series of communications to Macy in which it characterized the nature of her complaint alternatively as "gender identity stereotyping," and "sex (female) and gender identity stereotyping;" the Agency further indicated that the gender identity stereotyping aspect of her claim would be processed outside of the EEOC's standard Title VII adjudication process.5 Upon notification that the Agency did not intend to follow the process applicable to Title VII complaints for a portion of her complaint, Macy appealed to the EEOC, seeking to have her claim adjudicated in accordance with the EEOC's Title VII process in its entirety.

The Appeal to the Commission

On appeal, the EEOC reviewed the Agency's characterization of Macy's claim and found the Agency had improperly separated her claims into two distinct claims, one for discrimination based on "sex," and one for discrimination based on "sex stereotyping," "gender transition/change of sex," and/or "gender identity." The EEOC further concluded that each of these formulations of Macy's claims were merely different ways of stating the same claim for discrimination "based on . . . sex," which clearly was cognizable under Title VII.

In so concluding, the EEOC first evaluated whether, under Title VII, only the "sex" discrimination portion of Macy's complaint fell under the umbrella of Title VII's prohibitions, or whether Macy's complaint in its entirety properly was cognizable under Title VII's prohibition against discrimination "based on . . . sex." Relying on a number of notable decisions, including the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins,6 which found that discrimination against an individual for failing to conform to gender-based expectations violated Title VII, the EEOC found, resoundingly, in the affirmative. As the EEOC stated:

[a]s used in Title VII, the term 'sex' 'encompasses both sex—that is, the biological differences between men and women—and gender.' As the Eleventh Circuit noted . . . Title VII barred...