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Workplace Issues: EEOC transgender ruling protects gender identity

Lindy Korn

The EEOC on April 20, found that the term “sex” under Title VII encompasses both biological sex and gender stereotypes, Macy v. Holder, EEOC, no. 0120120821.

The case involves Mia Macy, a former police detective who applied for a job as a ballistics technician for the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

Macy claims that she received positive feedback early in the hiring process, but the situation suddenly changed after she disclosed to the bureau that she was transitioning from male to female. She claims she was later falsely told that the position she applied for had been eliminated for budgetary reasons. She learned from another ATF official that another applicant had filled the position.

Macy filed a formal complaint with ATF, arguing that it engaged in unlawful “sex stereotyping” based on her transgender status in violation of Title VII.

The EEOC ruling in Macy held:

“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.”

Some say that this opens the door for allowing other plaintiffs, such as those alleging bias on the basis of sexual orientation, to sue under Title VII.

The ruling should serve as a signal to employers to develop policies that discourage harassment based on traits associated with a particular gender identity or orientation. Additionally, someone in the employer’s HR office needs to have training on the type of accommodations that transgendered individuals may need to function well in the workplace.

Meanwhile, legislation that would expressly bar adverse employment actions based on sexual orientation or gender identity, the Employment Non-Discrimination Act, is stalled in Congress. If that law passes — and language protecting transgendered individuals is dropped — courts could reason that Congress had an opportunity to explicitly ban transgendered based bias, but chose not to do so. That could affect treatment of Title VII claims brought by transgendered plaintiffs.

Stay Tuned …

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).