Thursday, April 11, 2013

One Year Ago: EEOC Finds LGBT Discrimination Violates Title VII

In April 2012, the EEOC Determined in Mia Macy v. Eric Holder That Discrimination Against a Transgender Woman Violated Title VII

Women's Rights - So Yesterday...
Mia Macy
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.
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.

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. 

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.

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.

Well-Reasoned, but Not Yet the Law
Full Text of EEOC's April 2012 Transgender Discrimination Decision - Macy v. Holder


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


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 (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.




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.




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.  Click Here to jump to same].




April 20, 2012


Bernadette B. Wilson

Acting Executive Officer



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



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).


John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

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