Locke Lord QuickStudy: EEOC Rules Transgender Employees Are Protected Under Title VII

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    EEOC Rules Transgender Employees Are Protected Under Title VII

    In a ground breaking decision reversing its own precedent, the United States Equal Employment Opportunity Commission (EEOC) ruled that discrimination against transgender individuals is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Macy v. Holder Appeal No. 0120120821 (April 20, 2012). Title VII prohibits employment discrimination based on sex but does not expressly prohibit discrimination on the basis of transsexualism or gender identity. The EEOC’s ruling stated that intentionally discriminating against an individual based on gender identity, change of sex, and/or transgender status is a form of sex discrimination, and thus, actionable under Title VII.

    The EEOC’s decision arose out of the case of Mia Macy (“Macy”), a transgender woman who alleges that she was denied a job at a federal agency after she revealed that she was in the process of transitioning from a male to a female. After filing a formal discrimination complaint with the agency that denied her employment application, Macy appealed to the EEOC for a ruling on a jurisdictional issue: whether a gender identity/transgender discrimination claim qualified as a claim of sex discrimination under Title VII. It is important to note that unlike cases involving private employers, the EEOC can issue a formal ruling here because the Commission serves in an appellate capacity regarding equal employment determinations by federal agency employers.

    The Commission unanimously agreed with Macy that her entire claim is subject to Title VII’s ban on discrimination on the basis of sex. Primarily relying on the U.S. Supreme Court’s seminal opinion in Price Waterhouse v. Hopkins and its progeny, the Commission reasoned that transgender discrimination is “related to the sex of the victim,” and thus actionable under Title VII. According to the EEOC, claims for sex discrimination include discrimination based on the failure to conform to gender-based stereotypes, discrimination against a person because he or she is transgender, and discrimination based on the transition of an individual from one sex to another. Thus, the EEOC concluded that Macy’s complaint alleging discrimination based on her transgender status states a claim upon which relief can be granted under Title VII.

    The EEOC’s decision signals a turning point in this area of law on a nationwide level. While the EEOC’s ruling in this case is directly binding only on federal agencies, private employers will nevertheless feel its impact. The EEOC undoubtedly will treat any allegation of transgender discrimination as unlawful sex discrimination in litigation and enforcement proceedings across its 53 field offices, and employers — even those operating in states with existing statutory protections for transgendered employees — will likely see an increase in federal claims of discrimination by employees on the basis of gender identity.

    Currently, the First, Sixth, and Ninth Circuits have issued decisions holding that transgendered individuals, or more broadly, gender non-conforming individuals, are protected from discrimination under Title VII. Employers should also note that several states, including California, Illinois, D.C., New Jersey, and New York, have laws offering varying degrees of protection to transgendered individuals in employment. In this new environment, employers should consider taking the following actions:

    • Where applicable, revise anti-discrimination and anti-harassment policies to include gender identity and expression as a protected classification;
    • Train management and HR personnel on the proper handling of issues related to transgendered individuals, such as the potential needs of gender transitioning employees; and
    • Review policies governing use of restrooms, locker rooms, and other gender-specific facilities.

    For more information on the matters discussed in this Locke Lord QuickStudy, please contact one of Locke Lord’s Labor & Employment Practice attorneys or one of the authors listed below. 

    Scott K. Davidson | T: 713-226-1305 | sdavidson@lockelord.com 
    Saira K. Najam | T: 713-226-1685 | snajam@lockelord.com

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