In April 2012, the EEOC Determined in Mia Macy v. Eric Holder That Discrimination Against a Transgender Woman Violated Title VII
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| Women's Rights - So Yesterday... |
This decision is a real sign of the times. Think about it.
Once upon a time, only Government employees and members of Unions had any sort of job security. The rest of American workers were employed "at-will," and could be fired for any reason. At that point in our history, companies had carte blanche to refuse to hire women, minorities, disabled people, older workers or "foreigners."
Today, the
employment at-will doctrine still runs deep in America, but a number of exceptions to that doctrine designed to create equal employment opportunities have been passed by our Congress.
True change began with the enactment of the Civil Rights Act of 1964 (now commonly referred to as "
Title VII"). The central focus of Title VII at the outset was to promote fair employment treatment for women and African-Americans (then referred to as "blacks"). Prior to the enactment of Title VII, blacks were routinely denied employment opportunities, and women were subjected to a very low glass ceiling and very high quotient of sexual harassment.
Prior to the passing of the
Age Discrimination in Employment Act in 1967, workers over the age of 40 had no protection against job discrimination based upon age.
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| Perfectly Fine - Until 1986 |
The term "
hostile work environment" did not enter into the American vernacular until the 1986 Supreme Court decision in
Meritor Savings Bank v. Vinson, where the Court held that a woman who had been subjected to sexual harassment could sue for damages arising out of her humiliation and anguish even though she had not suffered a demotion or loss of her job.
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| Ramp Installed - 1990 |
Prior to the ratification of the
Americans With Disabilities Act in 1990, an employee could have been fired because he/she had AIDS, was wheelchair bound, or battling cancer.
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| 1rst FMLA Babies Now in College! |
Prior to the passage of the
Family and Medical Leave Act in 1993, you could have been fired for having a baby, or nursing your spouse or child through a serious illness.
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Sign of Times:
Same-Sex Marriage Symbol |
In March 2013, the U.S. Supreme Court
heard argument on the constitutionality of California's Proposition 8, which bans same-sex marriage in California, and
then on the legality of the Defense of Marriage Act, a federal law prohibiting the payment of federal benefits to spouses in same-sex marriages.
While the LGBT (Lesbian, Gay, Bisexual, and Transgender) movement is gaining force, the fact is that, as of April 11, 2013,
same-sex marriage is legal in only 9 states (plus D.C.), and
is banned in 38 states (3 states,
New Mexico, New Jersey and Rhode Island, have abstained on the issue).
April 20, 2013 will mark the one-year anniversary of
the EEOC's finding in Macy v. Holder that "discrimination based on gender identity, change of sex, and/or transgender status is cognizable [i.e. unlawful] under Title VII."
The U.S. Supreme Court has yet to decide this issue, nor has Congress formally amended Title VII to include LGBT protection. Hence,
the EEOC's decision, while influential, is not yet the law of the land.
The
Macy decision is well conceived and supported. Rather than try and summarize it, I have simply
reprinted it below in its entirety.
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| Well-Reasoned, but Not Yet the Law |
Full Text of EEOC's April 2012 Transgender Discrimination Decision - Macy v. Holder
BACKGROUND
Complainant, a transgender woman, was a
police detective in Phoenix,
Arizona. In December 2010 she decided to relocate to
San Francisco
for family reasons. According to her formal complaint,
Complainant was
still known as a male at that time,
having not yet made the transition
to being a female.
Complainant’s supervisor in Phoenix
told her that the Bureau of Alcohol,
Tobacco, Firearms and Explosives
(Agency) had a position open at its
Walnut Creek crime laboratory for which
the Complainant was qualified.
Complainant is trained and certified as
a National Integrated Ballistic
Information Network (NIBIN) operator
and a BrassTrax ballistics
investigator.
Complainant discussed the position with
the Director of the Walnut
Creek lab by telephone, in either
December 2010 or January 2011, while
still presenting as a man. According to Complainant, the telephone
conversation covered her experience,
credentials, salary and benefits.
Complainant further asserts that,
following the conversation, the Director
told her she would be able to have the
position assuming no problems arose
during her background check. The Director also told her that the position
would be filled as a civilian
contractor through an outside company.
Complainant states that she talked
again with the Director in January
2011 and asked that he check on the
status of the position. According to
Complainant in her formal complaint,
the Director did so and reasserted
that the job was hers pending
completion of the background check.
Complainant asserts, as evidence of her
impending hire, that Aspen of
DC (“Aspen”),FN. 2, the contractor
responsible for filling the position,
contacted her to begin the necessary paperwork
and that an investigator
from the Agency was assigned to do her
background check. FN. 3
On March 29, 2011, Complainant informed
Aspen via email that she was
in the process of transitioning from
male to female and she requested
that Aspen inform the Director of the
Walnut Creek lab of this change.
According to Complainant, on April 3,
2011, Aspen informed Complainant
that the Agency had been informed of
her change in name and gender.
Five days later, on April 8, 2011,
Complainant received an email from
the contractor’s Director of Operations
stating that, due to federal
budget reductions, the position at
Walnut Creek was no longer available.
According to Complainant, she was
concerned about this quick change
in events and on May 10, 2011, FN. 4,
she contacted an agency EEO counselor
to discuss her concerns. She states that the counselor told her that
the position at Walnut Creek had not
been cut but, rather, that someone
else had been hired for the
position. Complainant further states
that
the counselor told her that the Agency
had decided to take the other
individual because that person was
farthest along in the background
investigation. FN.5 Complainant claims that this was a pretextual
explanation
because the background investigation had
been proceeding on her as well.
Complainant believes she was
incorrectly informed that the position
had been cut because the Agency did not
want to hire her because she
is transgender.
The EEO counselor’s report indicates
that Complainant alleged that
she had been discriminated against
based on sex, and had specifically
described her claim of discrimination
as “change in gender (from male
to female).”
On June 13, 2011, Complainant filed her
formal EEO complaint with the
Agency.
On her formal complaint form, Complainant checked off “sex”
and the box “female,” and then typed in
“gender identity” and
“sex stereotyping” as the basis of her
complaint. In the narrative
accompanying her complaint, Complainant
stated that she was discriminated
against on the basis of “my sex, gender
identity (transgender woman)
and on the basis of sex stereotyping.”
On October 26, 2011, the Agency issued
Complainant a Letter of Acceptance,
stating that the “claim alleged and
being accepted and referred for
investigation is the following: Whether you were discriminated against
based on your gender identity sex
(female) stereotyping when on May 5,
2011, you learned that you were not
hired as a Contractor for the position
of [NIBIN] Ballistics Forensic Technician
in the Walnut Creek Lab,
San Francisco Field Office.” The letter went on to state, however,
that “since claims of discrimination on
the basis of gender identity
stereotyping cannot be adjudicated
before the [EEOC], your claims will
be processed according to Department of
Justice policy.” The letter
provided that if Complainant did not
agree with how the Agency had
identified her claim, she should
contact the EEO office within 15 days.
The Department of Justice has one
system for adjudicating claims of sex
discrimination under Title VII and a
separate system for adjudicating
complaints of sexual orientation and
gender identity discrimination by
its employees. This separate process does not include the
same rights
offered under Title VII and the EEOC
regulations set forth under 29
C.F.R. Part 1614. See Department of Justice Order 1200.1,
Chapter 4-1,
B.7.j, found at
http://www.justice.gov/jmd/ps/chpt4-1.html (last accessed
on March 30, 2012). While such complaints are processed utilizing
the
same EEO complaint process and time
frames – including an ADR program,
an EEO investigation and issuance of a
final Agency decision – the
Department of Justice process allows
for fewer remedies and does not
include the right to request a hearing
before an EEOC Administrative
Judge or the right to appeal the final
Agency decision to the Commission.
On November 8, 2011, Complainant’s
attorney contacted the Agency by
letter to explain that the claims that
Complainant had set forth in
the formal complaint had not been
correctly identified by the Agency.
The letter explained that the claim as
identified by the Agency was both
incomplete and confusing. The letter noted that “[Complainant] is a
transgender woman who was discriminated
against during the hiring process
for a job with [the Agency],” and that
the discrimination against
Complainant was based on “separate and
related” factors, including on
the basis of sex, sex stereotyping, sex
due to gender transition/change
of sex, and sex due to gender
identity. Thus, Complainant disagreed
with the Agency’s contention that her
claim in its entirety could not
be adjudicated through the Title VII
and EEOC process simply because of
how she had stated the alleged bases of
discrimination.
On November 18, 2011, the Agency issued
a correction to its Letter
of Acceptance in response to
Complainant’s November 8, 2011 letter.
In this letter, the Agency stated that
it was accepting the complaint
“on the basis of sex (female) and
gender identity stereotyping.”
However, the Agency again stated that
it would process only her claim
“based on sex (female)” under Title VII
and the EEOC’s Part 1614
regulations. Her claim based on “gender identity
stereotyping” would
be processed instead under the Agency’s
“policy and practice,”
including the issuance of a final
Agency decision from the Agency’s
Complaint Adjudication Office.
CONTENTIONS
ON APPEAL
On December 6, 2011, Complainant,
through counsel, submitted a Notice
of Appeal to the Commission asking that
it adjudicate the claim that
she was discriminated against on the
basis of “sex stereotyping,
sex discrimination based gender
transition/change of sex, and sex
discrimination based gender identity”
when she was denied the position
as an NIBIN ballistics technician.
Complainant argues that EEOC has
jurisdiction over her entire claim.
She further asserts that the Agency’s
“reclassification” of her
claim of discrimination into two
separate claims of discrimination –
one “based on sex (female) under Title
VII” which the Agency will
investigate under Title VII and the
EEOC’s Part 1614 regulations,
and a separate claim of discrimination
based on “gender identity
stereotyping” which the Agency will
investigate under a separate
process designated for such claims --
is a “de facto dismissal”
of her Title VII claim of
discrimination based on gender identity and
transgender status.
In response to Complainant’s appeal,
the Agency sent a letter to the
Commission on January 11, 2012, arguing
that Complainant’s appeal was
“premature” because the Agency had
accepted a claim designated as
discrimination “based on sex (female).”
In response to the Agency’s January 11,
2012 letter, Complainant wrote
to the Agency on February 8, 2012, stating
that, in light of how the
Agency was characterizing her claim,
she wished to withdraw her claim
of “discrimination based on sex
(female),” as characterized by the
Agency, and to pursue solely the
Agency’s dismissal of her complaint
of discrimination based on her gender
identity, change of sex and/or
transgender status. In a letter to the Commission dated February
9, 2012,
Complainant explained that she had
withdrawn the claim “based on sex
(female)” as the Agency had
characterized it, in order to remove any
possible procedural claim that her
appeal to the Commission was premature.
Complainant reiterates her contention
that the Agency mischaracterized her
claim and asks the Commission to rule
on her appeal that the Agency should
investigate, under Title VII and the
EEOC’s Part 1614 regulations,
her claim of discriminatory failure to
hire based on her gender identity,
change of sex, and/or transgender
status.
ANALYSIS
AND FINDINGS
The narrative accompanying
Complainant’s complaint makes clear that
she believes she was not hired for the
position as a result of making
her transgender status known. As already noted, Complainant stated
that she was discriminated against on
the basis of “my sex, gender
identity (transgender woman) and on the
basis of sex stereotyping.”
In response to her complaint, the
Agency stated that claims of gender
identity discrimination “cannot be
adjudicated before the [EEOC].”
See Agency Letters of October 26, 2011
and November 18, 2011. Although it
is possible that the Agency would have
fully addressed her claims under
that portion of her complaint accepted
under the 1614 process, the
Agency’s communications prompted in
Complainant a reasonable belief
that the Agency viewed the gender
identity discrimination she alleged
as outside the scope of Title VII’s sex
discrimination prohibitions.
Based on these communications,
Complainant believed that her complaint
would not be investigated effectively
by the Agency, and she filed the
instant appeal.
EEOC Regulation 29 C.F.R. §1614.107(b)
provides that where an agency
decides that some, but not all, of the
claims in a complaint should be
dismissed, it must notify the
complainant of its determination.
However,
this determination is not appealable
until final action is taken on the
remainder of the complaint. In apparent recognition of the operation of
§1614.107(b), Complainant withdrew the
accepted portion of her complaint
from the 1614 process so that the constructive
dismissal of her gender
identity discrimination claim would be
a final decision and the matter
ripe for appeal.
In the interest of resolving the
confusion regarding a recurring legal
issue that is demonstrated by this
complaint’s procedural history,
as well as to ensure efficient use of
resources, we accept this appeal
for adjudication. Moreover, EEOC’s responsibilities under
Executive
Order 12067 for enforcing all Federal
EEO laws and leading the Federal
government’s efforts to eradicate
workplace discrimination, require,
among other things, that EEOC ensure
that uniform standards be implemented
defining the nature of employment
discrimination under the statutes
we enforce. Executive Order 12067, 43 F.R. 28967, §
1-301(a) (June
30, 1978). To that end, the Commission hereby clarifies
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 may therefore be processed
under Part 1614 of EEOC’s federal
sector EEO complaints process.
We find that the Agency mistakenly
separated Complainant’s complaint
into separate claims: one described as
discrimination based on “sex”
(which the Agency accepted for
processing under Title VII) and others that
were alternatively described by
Complainant as “sex stereotyping,”
“gender transition/change of sex,” and
“gender identity”
(Complainant Letter of Nov. 8, 2011);
by the Agency as “gender
identity stereotyping” (Agency Letter
Nov. 18, 2011); and finally
by Complainant as “gender identity,
change of sex and/or transgender
status” (Complainant Letter Feb. 8,
2012). While Complainant could
have chosen to avail herself of the
Agency’s administrative procedures
for discrimination based on gender
identity, she clearly expressed
her desire to have her claims
investigated through the 1614 process,
and this desire should have been
honored. Each of the formulations of
Complainant’s claims are simply
different ways of stating the same
claim of discrimination “based on . . .
sex,” a claim cognizable
under Title VII.
Title VII states 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) (emphasis
added). Cf. 42
U.S.C. §§ 2000e-2(a)(1), (2) (it is
unlawful for a covered employer to
“fail or refuse to hire or to discharge
any individual, or otherwise
to discriminate with respect to his
compensation, terms, conditions, or
privileges of employment,” or to
“limit, segregate, or classify his
employees or applicants for employment
in any way which would deprive or
tend to deprive any individual of
employment opportunities or otherwise
adversely affect his status as an
employee, because of such individual’s
. . . sex”) (emphasis added).
As used in Title VII, the term “sex”
“encompasses both sex—that
is, the biological differences between
men and women—and gender.” See
Schwenk v. Hartford, 204 F.3d 1187,
1202 (9th Cir. 2000); see also Smith
v. City of Salem, 378 F.3d 566, 572
(6th Cir. 2004) (“The Supreme Court
made clear that in the context of Title
VII, discrimination because of
‘sex’ includes gender
discrimination.”). As the Eleventh
Circuit
noted in Glenn v. Brumby, 663 F.3d
1312, 1316 (11th Cir. 2011), six
members of the Supreme Court in Price
Waterhouse agreed that Title VII
barred “not just discrimination because
of biological sex, but also
gender stereotyping—failing to act and
appear according to expectations
defined by gender.” As such, the terms “gender” and “sex” are
often used interchangeably to describe
the discrimination prohibited by
Title VII. See, e.g., Price Waterhouse v. Hopkins, 490
U.S. 228, 239
(1989) (emphasis added) (“Congress’
intent to forbid employers to
take gender into account in making
employment decisions appears on the
face of the statute.”).
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.
In Price Waterhouse, the employer
refused to make a female senior manager,
Hopkins, a partner at least in part
because she did not act as some of
the partners thought a woman should
act. Id. at 230–31, 235. She was
informed, for example, that to improve
her chances for partnership
she should “walk more femininely, talk
more femininely, dress more
femininely, wear make-up, have her hair
styled, and wear jewelry.”
Id. at 235. The Court concluded that discrimination for
failing to
conform with gender-based expectations
violates Title VII, holding that
“[i]n the specific context of sex
stereotyping, an employer who acts
on the basis of a belief that a woman
cannot be aggressive, or that she
must not be, has acted on the basis of
gender.” Id. at 250.
Although the partners at Price
Waterhouse discriminated against
Ms. Hopkins for failing to conform to
stereotypical gender norms,
gender discrimination occurs any time
an employer treats an employee
differently for failing to conform to
any gender-based expectations
or norms. “What matters, for purposes of . . . the
Price Waterhouse
analysis, is that in the mind of the
perpetrator the discrimination is
related to the sex of the victim.” Schwenk, 204 F.3d at 1201–02;
see also Price Waterhouse, 490 U.S. at
254–55 (noting the illegitimacy
of allowing “sex-linked evaluations to
play a part in the [employer’s]
decision-making process”).
“Title VII does identify one circumstance in
which an employer may
take gender into account in making an
employment decision, namely,
when gender is a ‘bona fide occupational
qualification [ (BFOQ) ]
reasonably necessary to the normal operation
of th[e] particular business
or enterprise.’” Price Waterhouse, 490 U.S. at 242 (quoting 42
U.S.C.
§ 2000e-2(e)). Even then, “the [BFOQ]
exception was in fact
meant to be an extremely narrow exception to
the general prohibition
of discrimination on the basis of sex.’” See Phillips v. Martin
Marietta Corp., 400 U.S. 542, 544 (1971)
(Marshall, J., concurring).
“The only plausible inference to draw from
this provision is that,
in all other circumstances, a person’s gender
may not be considered in
making decisions that affect her.” Price Waterhouse, 490 U.S. at 242. FN. 6.
When an employer discriminates against
someone because the person
is transgender, the employer has
engaged in disparate treatment
“related to the sex of the
victim.” See Schwenk, 204 F.3d at 1202.
This is true regardless of whether an
employer discriminates against
an employee because the individual has
expressed his or her gender
in a non-stereotypical fashion, because
the employer is uncomfortable
with the fact that the person has
transitioned or is in the process of
transitioning from one gender to
another, or because the employer simply
does not like that the person is
identifying as a transgender person.
In each of these circumstances, the
employer is making a gender-based
evaluation, thus violating the Supreme
Court’s admonition that “an
employer may not take gender into account
in making an employment
decision.” Price Waterhouse, 490 U.S. at 244.
Since Price Waterhouse, courts have
widely recognized the availability
of the sex stereotyping theory as a
valid method of establishing
discrimination “on the basis of sex” in
many scenarios involving
individuals who act or appear in
gender-nonconforming ways. FN. 7. And
since
Price Waterhouse, courts also have
widely recognized the availability
of the sex stereotyping theory as a
valid method of establishing
discrimination “on the basis of sex” in
scenarios involving
transgender individuals.
For example, in Schwenk v. Hartford, a
prison guard had sexually assaulted
a pre-operative male-to-female
transgender prisoner, and the prisoner
sued, alleging that the guard had
violated the Gender Motivated Violence
Act (GMVA), 42 U.S.C. § 13981. 204 F.3d at 1201–02. The U.S. Court
of Appeals for the Ninth Circuit found
that the guard had known that the
prisoner “considered herself a
transsexual and that she planned to seek
sex reassignment surgery in the
future.” Id. at 1202. According to
the court, the guard had targeted the
transgender prisoner “only after
he discovered that she considered
herself female[,]” and the guard was
“motivated, at least in part, by [her] gender”—that
is, “by her
assumption of a feminine rather than a
typically masculine appearance or
demeanor.” Id. On
these facts, the Ninth Circuit readily concluded
that the guard’s attack constituted
discrimination because of gender
within the meaning of both the GMVA and
Title VII.
The court relied on Price Waterhouse,
reasoning that it stood for the
proposition that discrimination based
on sex includes discrimination
based on a failure “to conform to
socially-constructed gender
expectations.” Id. at 1201–02. Accordingly, the Ninth Circuit
concluded, discrimination against
transgender females – i.e.,
“as anatomical males whose outward
behavior and inward identity
[do] not meet social definitions of
masculinity” – is actionable
discrimination “because of sex.” Id. (emphasis added); cf. Rosa
v. Park W. Bank & Trust Co., 214
F.3d 213, 215–16 (1st Cir. 2000)
(finding that under Price Waterhouse, a
bank’s refusal to give a loan
application to a biologically-male
plaintiff dressed in “traditionally
feminine attire” because his “attire
did not accord with his male
gender” stated a claim of illegal sex
discrimination in violation of
the Equal Credit Opportunity Act, 15
U.S.C. §§ 1691–1691f).
Similarly, in Smith v. City of Salem,
the plaintiff was “biologically
and by birth male.” 378 F.3d at 568. However, Smith was diagnosed
with Gender Identity Disorder (GID),
and began to present at work as a
female (in accordance with medical
protocols for treatment of GID). Id.
Smith’s co-workers began commenting
that her appearance and mannerisms
were “not masculine enough.” Id.
Smith’s employer later subjected
her to numerous psychological
evaluations, and ultimately suspended her.
Id. at 569–70. Smith filed suit under Title VII alleging
that her
employer had discriminated against her
because of sex, “both because
of [her] gender non-conforming conduct
and, more generally, because of
[her] identification as a
transsexual.” Id. at 571 (emphasis
added).
The district court rejected Smith’s
efforts to prove her case using
a sex-stereotyping theory, concluding
that it was really an attempt
to challenge discrimination based on
“transsexuality.” Id.
The U.S. Court of Appeals for the Sixth
Circuit reversed, stating that
the district court’s conclusion:
cannot be reconciled with Price
Waterhouse, which does not make Title
VII protection against sex stereotyping
conditional or provide any
reason to exclude Title VII coverage
for non sex-stereotypical behavior
simply because the person is a
transsexual. As such, discrimination
against a plaintiff who is a
transsexual—and therefore fails to
act and/or identify with his or her
gender—is no different from the
discrimination directed against [the
plaintiff] in Price Waterhouse who,
in sex-stereotypical terms, did not act
like a woman. Sex stereotyping
based on a person’s gender
non-conforming behavior is impermissible
discrimination, irrespective of the
cause of that behavior; a label,
such as “transsexual” is not fatal to a
sex discrimination claim
where the victim has suffered
discrimination because of his or her gender
non-conformity. Accordingly, we hold that Smith has stated a
claim for
relief pursuant to Title VII’s
prohibition of sex discrimination.
Id. at 574–75. FN. 8.
Finally, as the Eleventh Circuit
suggested in Glenn v. Brumby, 663 F.3d
1312 (11th Cir. 2011), consideration of
gender stereotypes will inherently
be part of what drives discrimination
against a transgendered individual.
In that case, the employer testified at
his deposition that it had fired
Vandiver Elizabeth Glenn, a transgender
woman, because he considered it
“inappropriate” for her to appear at
work dressed as a woman and that
he found it “unsettling” and
“unnatural” that she would appear
wearing women’s clothing. Id. at 1320.
The firing supervisor further
testified that his decision to dismiss
Glenn was based on his perception
of Glenn as “a man dressed as a woman
and made up as a woman,” and
admitted that his decision to fire her
was based on “the sheer fact
of the transition.” Id. at 1320–21. According to the Eleventh
Circuit, this testimony “provides ample
direct evidence” to support
the conclusion that the employer acted
on the basis of the plaintiff’s
gender non-conformity and therefore
granted summary judgment to her.
Id. at 1321.
In setting forth its legal reasoning,
the Eleventh Circuit explained:
A person is defined as transgender
precisely because of the perception
that his or her behavior transgresses
gender stereotypes. “[T]he
very acts that define transgender
people as transgender are those that
contradict stereotypes of
gender-appropriate appearance and behavior.”
Ilona M. Turner, Sex Stereotyping Per
Se: Transgender Employees and Title
VII, 95 Cal. L. Rev. 561, 563 (2007);
see also Taylor Flynn, Transforming
the Debate: Why We Need to Include
Transgender Rights in the Struggles
for Sex and Sexual Orientation
Equality, 101 Colum. L.Rev. 392, 392 (2001)
(defining transgender persons as those
whose “appearance, behavior, or
other personal characteristics differ
from traditional gender norms”).
There is thus a congruence between
discriminating against transgender and
transsexual individuals and
discrimination on the basis of gender-based
behavioral norms.
Accordingly, discrimination against a
transgender individual because of
her gender-nonconformity is sex
discrimination, whether it’s described
as being on the basis of sex or gender. Glenn v. Brumby, 663 F.3d 1312, 1316–17
(11th Cir. 2011). FN. 9.
There has likewise been a steady stream
of district court decisions
recognizing that discrimination against
transgender individuals on the
basis of sex stereotyping constitutes
discrimination because of sex.
Most notably, in Schroer v. Billington,
the Library of Congress rescinded an
offer of employment it had extended to
a transgender job applicant after
the applicant informed the Library’s
hiring officials that she intended
to undergo a gender transition. See 577 F. Supp. 2d 293 (D.D.C. 2008).
The U.S. District Court for the
District of Columbia entered judgment
in favor of the plaintiff on her Title
VII sex discrimination claim.
According to the district court, it did
not matter “for purposes of
Title VII liability whether the Library
withdrew its offer of employment
because it perceived Schroer to be an
insufficiently masculine man,
an insufficiently feminine woman, or an
inherently gender-nonconforming
transsexual.” Id. at 305.
In any case, Schroer was “entitled to
judgment based on a
Price-Waterhouse-type claim for sex stereotyping
. . . .” Id.
FN. 10.
To be sure, the members of Congress
that enacted Title VII in 1964
and amended it in 1972 were likely not
considering the problems of
discrimination that were faced by
transgender individuals. But as the
Supreme Court recognized in Oncale v.
Sundowner Offshore Services, Inc.:
[S]tatutory prohibitions often go
beyond the principal evil [they
were passed to combat] to cover
reasonably comparable evils, and it
is ultimately the provisions of our
laws rather than the principal
concerns of our legislators by which we
are governed. Title VII
prohibits “discriminat[ion] . . . because of . . . sex” in
. . . employment. [This] . . . must
extend to [sex-based discrimination]
of any kind that meets the statutory
requirements.
523 U.S. at 79-80; see also Newport
News, 462 U.S. at 679–81 (rejecting
the argument that discrimination
against men does not violate Title
VII despite the fact that
discrimination against women was plainly the
principal problem that Title VII’s
prohibition of sex discrimination
was enacted to combat).
Although most courts have found
protection for transgender people
under Title VII under a theory of
gender stereotyping, evidence of
gender stereotyping is simply one means
of proving sex discrimination.
Title VII prohibits discrimination
based on sex whether motivated by
hostility, FN. 11, by a desire to
protect people of a certain gender, FN. 12, by
assumptions that disadvantage men, FN. 13,
by gender stereotypes, FN. 14, or by
the desire to accommodate other
people’s prejudices or discomfort. FN. 15
While evidence that an employer has
acted based on stereotypes about
how men or women should act is
certainly one means of demonstrating
disparate treatment based on sex, “sex
stereotyping” is not itself
an independent cause of action. As the Price Waterhouse Court noted,
while “stereotyped remarks can
certainly be evidence that gender
played a part” in an adverse employment
action, the central question
is always whether the “employer actually
relied on [the employee’s]
gender in making its decision.” Id. at 251 (emphasis in original).
Thus, a transgender person who has
experienced discrimination based
on his or her gender identity may
establish a prima facie case of
sex discrimination through any number
of different formulations.
These different formulations are not,
however, different claims
of discrimination that can be separated
out and investigated within
different systems. Rather, they are simply different ways of
describing
sex discrimination.
For example, Complainant could
establish a case of sex discrimination
under a theory of gender stereotyping
by showing that she did not get
the job as an NIBIN ballistics
technician at Walnut Creek because the
employer believed that biological men
should consistently present as
men and wear male clothing.
Alternatively, if Complainant can prove
that the reason that she did
not get the job at Walnut Creek is that
the Director was willing to hire
her when he thought she was a man, but
was not willing to hire her once
he found out that she was now a
woman—she will have proven that the
Director discriminated on the basis of
sex. Under this theory, there
would actually be no need, for purposes
of establishing coverage under
Title VII, for Complainant to compile
any evidence that the Director
was engaging in gender stereotyping.
In this respect, gender is no different
from religion. Assume that an
employee considers herself Christian
and identifies as such. But assume
that an employer finds out that the
employee’s parents are Muslim,
believes that the employee should
therefore be Muslim, and terminates
the employee on that basis. No one would doubt that such an employer
discriminated on the basis of
religion. There would be no need for the
employee who experienced the adverse
employment action to demonstrate that
the employer acted on the basis of some
religious stereotype—although,
clearly, discomfort with the choice
made by the employee with regard to
religion would presumably be at the
root of the employer’s actions.
But for purposes of establishing a
prima facie case that Title VII has
been violated, the employee simply must
demonstrate that the employer
impermissibly used religion in making
its employment decision.
The District Court in Schroer provided
reasoning along similar lines:
Imagine that an employee is fired
because she converts from Christianity
to Judaism. Imagine too that her employer testifies that
he harbors no
bias toward either Christians or Jews
but only ‘converts.’ That would
be a clear case of discrimination
‘because of religion.’ No court
would take seriously the notion that
‘converts’ are not covered by
the statute. Discrimination “because of religion” easily
encompasses
discrimination because of a change of
religion.
577 F. Supp. 2d at 306.
Applying Title VII in this manner does
not create a new “class” of
people covered under Title VII—for
example, the “class” of people
who have converted from Islam to
Christianity or from Christianity
to Judaism. Rather, it would simply be the result of
applying the
plain language of a statute prohibiting
discrimination on the basis
of religion to practical situations in
which such characteristics are
unlawfully taken into account. See Brumby, 663 F.3d at 1318–19 (noting
that “all persons, whether transgender
or not” are protected from
discrimination and “[a]n individual
cannot be punished because of his
or her perceived gender
non-conformity”).
Thus, we conclude that 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. FN. 16.
[Certain Procedural
Determinations/Instructions Omitted.
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FOR THE COMMISSION:
April 20, 2012
______________________________
Bernadette B. Wilson
Acting Executive Officer
FOOTNOTES
1. The facts in this section are taken
from the EEO Counselor’s Report
and the formal complaint of
discrimination. Because this decision
addresses a jurisdictional issue, we
offer no position on the facts
themselves and thus no position on
whether unlawful discrimination
occurred in this case.
2. It appears from the record that
Aspen of DC may be considered a
staffing firm. Under the Commission's
Enforcement Guidance: Application
of EEO Laws to Contingent Workers
Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice
No. 915.002 (December 3, 1997),
we have recognized that a “joint
employment” relationship may exist
where both the Agency and the “staffing
firm” may be deemed employers.
The Commission makes no determination
at this time as to whether or not
a “joint employment” relationship
exists in this case as this issue
is not presently before us.
3. On March 28, 2011, Complainant received an
e-mail from the contractor
asking her to fill out an application
packet for the position. It
is
unclear how far the background
investigation had proceeded prior to
Complainant notifying the contractor of
her gender change, but e-mails
included in the record indicate that
the Agency’s Personnel Security
Branch had received Complainant’s
completed security package, that
Complainant had been interviewed by a
security investigator, and that the
investigator had contacted Complainant
on March 31, 2011 and had indicated
that he “hope[d] to finish your
investigation the first of next week.”
4. In the narrative accompanying her formal
complaint, Complainant asserts
she contacted the Agency’s EEO
Counselor on May 5, 2011. However,
the EEO Counselor’s report indicates
that the initial contact occurred
on May 10, 2011.
5. The Counselor’s Report includes several email
exchanges with various
Agency officials who informed the
counselor of the circumstances by
which it was decided not to hire
Complainant.
6. There are other, limited instances in which
gender may be taken into
account, such as is in the context of a
valid affirmative action plan, see
Johnson v. Santa Clara County
Transportation Agency, 480 U.S. 616 (1987),
or relatedly, as part of a settlement
of a pattern or practice claim.
7. See, e.g., Lewis v. Heartland Inns of Am.,
L.L.C., 591 F.3d 1033, 1041
(8th Cir. 2010) (concluding that
evidence that a female “tomboyish”
plaintiff had been fired for not having
the “Midwestern girl look”
suggested “her employer found her
unsuited for her job . . . because her
appearance did not comport with its
preferred feminine stereotype”);
Prowel v. Wise Business Forms, Inc.,
579 F.3d 285 (3rd Cir. 2009) (an
effeminate gay man who did not conform
to his employer’s vision of how
a man should look, speak, and act
provided sufficient evidence of gender
stereotyping harassment under Title
VII); Medina v. Income Support Div.,
413 F.3d 1131, 1135 (10th Cir. 2005)
(involving a heterosexual female
who alleged that her lesbian supervisor
discriminated against her on the
basis of sex, and finding that “a
plaintiff may satisfy her evidentiary
burden [under Title VII] by showing
that the harasser was acting to
punish the plaintiff’s noncompliance
with gender stereotypes”);
Nichols v. Azteca Rest. Enters., 256
F.3d 864, 874–75 (9th Cir. 2001)
(concluding that a male plaintiff
stated a Title VII claim when he was
discriminated against “for walking and
carrying his tray ‘like a
woman’ – i.e., for having feminine
mannerisms”); Simonton v. Runyon,
232 F.3d 33, 37 (2d Cir. 2000)
(indicating that a gay man would have a
viable Title VII claim if “the abuse he
suffered was discrimination
based on sexual stereotypes, which may
be cognizable as discrimination
based on sex”); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d
252, 261 n.4 (1st Cir. 1999) (analyzing
a gay plaintiff’s claim that
his co-workers harassed him by “mocking
his supposedly effeminate
characteristics” and acknowledging that
“just as a woman can ground
an action on a claim that men
discriminated against her because she
did not meet stereotyped expectations
of femininity . . . a man can
ground a claim on evidence that other
men discriminated against him
because he did not meet stereotypical
expectations of masculinity”);
Doe by Doe v. City of Belleville, 119
F.3d 563, 580–81 (7th Cir. 1997)
(involving a heterosexual male who was
harassed by other heterosexual
males, and concluding that “a man who
is harassed because his voice
is soft, his physique is slight, his
hair is long, or because in some
other respect he . . . does not meet
his coworkers’ idea of how men
are to appear and behave, is harassed
‘because of’ his sex”),
vacated and remanded on other grounds,
523 U.S. 1001 (1998).
8. See also Barnes v. City of Cincinnati, 401
F.3d 729, 741 (6th Cir. 2005)
(affirming a jury award in favor of a
pre-operative transgender female,
ruling that “a claim for sex
discrimination under Title VII . . . can
properly lie where the claim is based on
‘sexual stereotypes’” and
that the “district court therefore did
not err when it instructed
the jury that it could find
discrimination based on ‘sexual
stereotypes’”).
9. But see Etsitty v. Utah Trans. Auth., No.
2:04–CV–616, 2005
WL 1505610, at *4–5 (D. Utah June 24,
2005) (concluding that Price
Waterhouse is inapplicable to
transsexuals), aff'd on other grounds,
502 F.3d 1215 (10th Cir.2007).
10.
The district court in Schroer also concluded that discrimination
against a transgender individual on the
basis of an intended, ongoing,
or completed gender transition is
“literally discrimination ‘because
of . . . sex.’” Schroer, 577 F. Supp. 2d at 308; see also id.
at
306–07 (analogizing to cases involving
discrimination based on
an employee’s religious conversion,
which undeniably constitutes
discrimination “because of . . .
religion” under Title VII).
For other district court cases using
sex stereotyping as grounds for
establishing coverage of transgender
individuals under Title VII, see
Michaels v. Akal Security, Inc., No.
09-cv-1300, 2010 WL 2573988, at * 4
(D. Colo. June 24, 2010); Lopez v.
River Oaks Imaging & Diag. Group, Inc.,
542 F. Supp. 2d 653, 660 (S.D. Tex.
2008); Mitchell v. Axcan Scandipharm,
Inc., No. Vic. A. 05-243, 2006 WL
456173 (W.D. Pa. Feb. 17, 2006);
Tronetti v. TLC HealthNet Lakeshore
Hosp., No. 03-CV-0375E(SC), 2003 WL
22757935 (W.D.N.Y. Sept. 26, 2003); Doe
v. United Consumer Fin. Servs.,
No. 1:01 CV 111, 2001 WL 34350174 (N.D.
Ohio Nov. 9, 2001).
11. See Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 64 (1986)
(recognizing that sexual harassment is
actionable discrimination
“because of sex”); Oncale v. Sundowner
Offshore Servs., Inc.,
523 U.S. 75, 80 (1998) (“A trier of
fact might reasonably find such
discrimination, for example, if a
female victim is harassed in such
sex-specific and derogatory terms by
another woman as to make it clear
that the harasser is motivated by
general hostility to the presence of
women in the workplace.”).
12. See Int’l Union v. Johnson Controls, 499 U.S.
187, 191 (1991)
(policy barring all female employees
except those who were infertile from
working in jobs that exposed them to
lead was facially discriminatory
on the basis of sex).
13. See, e.g., Newport News, 462 U.S. at 679–81
(providing different
insurance coverage to male and female
employees violates Title VII even
though women are treated better).
14. See, e.g., Price Waterhouse, 490 U.S. at
250–52.
15. See, e.g., Chaney v. Plainfield Healthcare
Ctr., 612 F.3d 908, 912
(7th Cir. 2010) (concluding that
“assignment sheet that unambiguously,
and daily, reminded [the plaintiff, a
black nurse,] and her co-workers
that certain residents preferred no
black” nurses created a hostile
work environment); Fernandez v. Wynn
Oil Co., 653 F.2d 1273, 1276-77
(9th Cir. 1981) (a female employee
could not lawfully be fired because
her employer’s foreign clients would
only work with males); Diaz v. Pan
American World Airways, Inc., 442 F.2d
385, 389 (5th Cir. 1971) (rejecting
customer preference for female flight
attendants as justification for
discrimination against male
applicants).
16. The Commission previously took this position
in an amicus brief
docketed with the district court in the
Western District of Texas
on Oct. 17, 2011, where it explained
that “[i]t is the position of
the EEOC that disparate treatment of an
employee because he or she is
transgender is discrimination “because
of . . . sex” under Title
VII.”
EEOC Amicus Brief in Pacheco v. Freedom Buick GMC Truck,
No. 07-116 (W.D. Tex. Oct. 17, 2011),
Dkt. No. 30, at page 1, 2011
WL 5410751. With this decision, we expressly overturn, in
light of
the recent developments in the caselaw
described above, any contrary
earlier decisions from the Commission. See,
e.g., Jennifer Casoni
v. United States Postal Service, EEOC
DOC 01840104 (Sept. 28, 1984);
Campbell v. Dep’t of Agriculture, EEOC
Appeal No. 01931703 (July 21,
1994); Kowalczyk v. Dep’t of Veterans
Affairs, EEOC Appeal No. 01942053
(March 14, 1996).
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