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Gender Identity Discrimination is Sexual Discrimination

lu_hwe_logo.jpgThe U.S. Equal Employment Opportunity Commission ("EEOC") recently held a transgender individual may state a case for sex discrimination under Title VII of the Civil Rights Act of 1964 in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012). Although the EEOC failed to make a determination on the merits of whether sexual discrimination occurred, it did hold discrimination based on an individual's gender identity, change of sex, and/or transgender status was a form of sexual discrimination prohibited under Title VII and remanded the matter for further adjudication.

In the Macy case, Mia Macy was known as a male and worked as a police detective in Phoenix, Arizona. For family reasons, she relocated to San Francisco and applied for a position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives agency in a crime laboratory. Macy, who was still a man while applying, was offered the position pending a security background check. While the security background was being conducted, Macy informed the officer she was in the process of transitioning from male to female. Five days later Macy was informed the position was no longer available due to budget reductions. However, Macy later discovered the position had not been cut and another individual had been hired for the position. Macy subsequently filed a complaint.

The EEOC held in its decision that Macy's discrimination based on gender identity, change of sex, and/or transgender status was a form of sexual discrimination prohibited under Title VII of the Civil Rights Act of 1964. Previous to this ruling, gender identity discrimination was viewed as outside the scope of Title VII's sex discrimination prohibitions. However, the EEOC reasoned "Title VII states that, except as otherwise specifically provided, 'all personnel actions affecting [federal] employees or applicants for employment. . . shall be made free from any discrimination based on . . . sex. . .'" The EEOC further explained "the term 'sex' 'encompasses both sex-that is, the biological differences between men and women-and gender.'" Yet, Title VII bars not just discrimination because of biological sex, but all gender stereotyping, meaning failing to act and appear according to expectations defined by gender. As such, the EEOC stated such discrimination based on an individual's gender identity, change of sex, and/or transgender status was prohibited by Title VII.

Although such employment occurrences similar to the above case are rare, employers should be mindful of the recent change in federal agency law. Furthermore, employers should ensure their policies of non-discrimination and employee privacy and confidentiality cover such events which might occur in an employee's life. Employers should consider drafting a specific transition guideline which would provide some direction to HR departments and employees.

Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.

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