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Discrimination Based on Gender Identity Covered under Title VII

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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The U.S. Equal Employment Opportunity Commission (EEOC) issued a noteworthy ruling on April 23, 2012, stating that a "complaint of discrimination based on gender identity, change of sex, and/or transgender status are cognizable under Title VII" of the Civil Rights Act of 1964.  

The EEOC made this determination in Macy v. Holder, a matter involving a discrimination complaint filed by a transgender individual, Mia Macy, against the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency (ATF). Macy claims she was subject to discrimination during the hiring process for a job with the ATF. Macy, presenting as a man at the time, was qualified for the position and asserts that the director of the ATF confirmed she would have the position contingent only upon the clearance of her background check. 

Subsequent to informing the ATF of her transition to female, Macy received notice that the position was no longer available due to federal budget reductions. However, after consulting with the EEOC office, Macy found that the position had not been cut, but rather, another individual had been hired for the position. Macy contends that the ATF rescinded the offer of employment upon learning that she was in the process of transitioning from male to female, and filed a formal EEOC complaint based on "gender identity" and "sex stereotyping." 

While the EEOC's ruling does not offer a position on whether unlawful discrimination occurred in this particular case, it does conclude 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 are therefore within the jurisdiction of the EEOC. Potential recourse is now available to transgender people who feel they have faced employment discrimination, as the ruling maintains that the EEOC has authority to consider such claims. 

The EEOC decision relies on the holding in Price Waterhouse v. Hopkins, where the United States Supreme Court held that sex stereotyping constitutes discrimination because of "sex" in the context of Title VII. In Price Waterhouse, the plaintiff, a female senior manager at an accounting firm, was denied a partnership position partly because she acted too masculine. The Court held that Title VII bars sex discrimination not only based on biological sex, but also sex stereotyping, that is, discrimination based on failure to conform to stereotypical gender norms, which in Price Waterhouse was the plaintiff's failure to act  in accordance with how the firm thought a woman should act. 

Since the Court's decision in Price Waterhouse, a number of federal courts have held that Title VII protects against employer discrimination for failure to conform to stereotypical gender norms. For example, in Smith v. Salem, the Sixth Circuit interpreted the Price Waterhouse holding to mean that if Title VII protects a woman who failed to conform to social expectations concerning how a woman should look and behave, it follows that employers who discriminate against men because they wear jewelry, makeup, dresses or otherwise act femininely are also engaging in sex discrimination. Further, discrimination against someone who is transsexual, whose behavior transgresses gender stereotypes associated with sex at birth, is not distinguishable from the discrimination associated with the plaintiff in Price Waterhouse, who, in sex-stereotypical terms, did not act in accordance with her biological sex. 

While not all courts accept the aforementioned application of the Price Waterhouse holding, employers are advised to consider the broad scope the EEOC and a number of courts have adopted with regard to sex stereotyping and gender identity as they pertain to Title VII sex discrimination. Though the EEOC decision did not discuss sexual orientation, it stands to reason that the ruling may arguably protect sexual orientation under Title VII because same sex orientation could be classified as gender nonconforming behavior. If viewed as such, discrimination based on sexual orientation would fall within the purview of gender identity and sex stereotyping, and could hypothetically be protected under Title VII. 

Future litigation will reveal the full scope of the EEOC's ruling; however, until such litigation ensues, employers should be mindful of the potential breadth of this decision.