Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (April 23, 2012)
On April 23, 2012, the Equal Employment Opportunity Commission (“EEOC”) held in a landmark decision, that transgender individuals who are discriminated against may now have recourse under Title VII of the Civil Rights Act of 1964, which generally prohibits employment discrimination “based on race, color, religion, sex and national origin.” The opinion was issued in Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (April 23, 2012), and it is the first time the EEOC has ruled that transgender discrimination is a form of sex discrimination.
The EEOC’s opinion arose after the Plaintiff, a police detective in Phoenix, Arizona, applied for a job with the Department of Alcohol, Tobacco, Firearms and Explosives (“ATF”). During the interview with the office’s director the Plaintiff was known as a man, and the director offered her the position provided she passed a background check. When the Plaintiff was contacted by a civilian contractor who would officially hire her for the ATF position, she informed the contractor that she was in the process of transitioning from male to female. Five days later, the Plaintiff was told that the position was no longer available due to budget cuts. She later discovered, however, that the position had instead been filled by someone else, who was allegedly further along in the background check process.
Title VII mandates that, except as otherwise specifically provided, “[a]ll personnel actions affecting [federal] employees or applicants for employment … shall be made free from any discrimination based on…sex…” 42 U.S.C. § 2000e-16(a). In analyzing whether the “term ‘sex’ ‘encompasses both sex—that is, the biological differences between man and woman—and gender,” the EEOC relied on precedent from the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). That is, Title VII bars “not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.” Similarly, the terms “gender” and “sex” are often used interchangeably to describe the discrimination prohibited by Title VII. Accordingly, Title VII’s ban on sex discrimination prohibits discrimination on the basis of both biological sex and gender, where a person’s “‘gender’ encompasses not only a [their] biological sex but also the cultural and social aspects associated with masculinity and femininity.”
After examining the relevant law involved in sex discrimination claims, the Commission then clarified that there are also policy reasons for not discriminating against a person based on their biological sex:
That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.
Ultimately, in reinstating the Plaintiff’s Title VII claim, the EEOC concluded, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.
Although this opinion is not binding on courts, employers cannot deny the significance of the EEOC’s decision, and failure to properly implement equal employment practices can be very costly for your company. If your institution has questions or concerns about your current hiring process or a hiring decision you recently made, and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516.357.3753.
A special thanks to Sean Gajewski for helping with this post. Sean is a third-year law student at Hofstra University School of Law. You can reach him by email at sean [at] sgajewski [dot] com. Bio: www.sgajewski.com.