In April 2012, the Equal Employment Opportunity Commission (EEOC) issued a decision holding that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex” in violation of Title VII. The EEOC’s position on this issue has shifted over the years and it has, at various times, asserted that such disparate treatment does not violate Title VII, as well as that whether such disparate treatment violates Title VII depends on the circumstances of each case. In recent years, we have seen the EEOC shift its position as several federal courts have ruled, under various circumstances, that a transgender individual may have a cause of action under Title VII for unlawful sex discrimination. The EEOC’s recent decision expressly overrules any prior contrary positions or opinions and leaves no doubt about the EEOC’s interpretation of the reach of Title VII.
The EEOC decision came in the context of a case filed by an applicant for employment with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. According to the charge, the individual, an experienced police detective, applied for a position while still being known as a male. While her background check was pending and after receiving assurances that the job was hers pending the background check, she informed the Bureau that she was in the process of transitioning from male to female. Shortly thereafter, she was told that the position had been cut for budgetary reasons. She ultimately learned, however, that the position had been filled by another applicant.
The complainant filed a charge of discrimination on the basis of sex, noting that gender identity and sex stereotyping were the basis of her complaint. Initially the EEOC refused to process her complaint, explaining that claims of “gender identity stereotyping” could not be adjudicated before the EEOC. On appeal, the EEOC reversed its position, clarifying 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,” and ordered an investigation into her charge.
The EEOC’s reasoning was based in large part on a U.S. Supreme Court case from 1989 in which the Court interpreted Title VII’s prohibition against sex discrimination as reaching certain claims of gender stereotyping. Thus, employers cannot discriminate against a woman because, for example, the employer harbors gender related stereotypes that women are not aggressive or should look and act in a feminine way. Drawing from this “sex-stereotyping” theory and citing to several more recent lower federal court decisions, the EEOC explained that discrimination against transgender individuals because they do not conform to sex stereotypes of their physiological or assigned sex amounts to unlawful discrimination.
The EEOC explained that it was not creating a new class of people covered under Title VII, which in some respects is true. However, the EEOC appeared to go one step further than courts have done by creating a new “rule” that intentional discrimination against an individual because he or she is transgender is “by definition” discrimination on the basis of sex.
The EEOC’s decision is largely academic in states like Maine and Massachusetts that already (or will as of July 1, 2012 in the case of Massachusetts) expressly prohibit discrimination against transgender individuals. Click here for a description of the new Massachusetts law outlawing gender identity discrimination. In states that do not already prohibit such discrimination, the EEOC’s interpretation of federal law, although not binding on courts, may be persuasive. Although this area of the law is constantly evolving and is, in fact, unsettled at the federal level, to avoid a claim of discrimination, employers should not make employment decisions because an individual is transgender.
If you have questions about the impact the EEOC decision may have on your business’ employment decisions, please contact any member of Pierce Atwood’s Employment Group.