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Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Stamford, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Wednesday
May022012

EEOC Changes Course And Extends Title VII Protection To Transgender Individuals

The EEOC recently ruled that Title VII provides protection to individuals who file charges based on "gender identity, change of sex, and/or transgender status."  The EEOC's decision represents a signifcant change in how the agency views transgender issues; specifically, the EEOC had previously ruled that Title VII did not extend protection to transgender individuals.

Background

Mia Macy interviewed for a position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  During the interview Macy presented as a man and was told the position was hers barring any hiccups with her background check.  During the background check process, Macy informed ATF that she was in the process of transitioning from male to female.  Within a week, the ATF informed Macy that the position was no longer available.  A short time later another person was hired for the same position.

Macy filed an EEOC charge in June 2011, and indicated that her complaint was based on "sex" as well as "gender identity" and "sex stereotyping."  In communications with Macy, the EEOC characterized her complaint as one based on sex (female) and gender identity stereotyping.  The EEOC informed Macy that it would process her gender identity stereotyping (i.e., transgender) claim outside the normal administrative process.  Macy, believing her gender identity claim was viable under Title VII, appealed to the full Commission and sought to have her gender identity claim adjudicated under the normal EEOC administrative process.

EEOC's Ruling

On appeal the full Commission ruled that Macy's transgender claim should be processed because such a complaint presents a  claim based on sex, which is clearly protected under Title VII.  In making its decision, the EEOC examined the Supreme Court's Price Waterhouse v. Hopkins decision as well as several federal appellate court decisions that relied on Price Waterhouse to find that:

[a]s used in Title VII, the term 'sex' encompasses both sex - that is, the biological differences between men and women - and gender.  As the Eleventh Circuit noted . . . 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.  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 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 effect, the EEOC interpreted the term "sex" to include protections to those persons who identify as transgender.   The EEOC's decision also highlighted that transgender persons can establish a case of discrimination based on a number of theories, including that a transgender applicant did not get a job because the employer believes biological men should present and dress as men.

What Does This Mean For Employers?

Many states already provide protection to transgender persons.  However, with the EEOC's new ruling (which overturned prior EEOC decisions to the contrary) it seems likely that the agency will start processing gender identity claims under Title VII.  As a result, discrimination claims based on transgender or gender identity status are - in the EEOC's view - actionable under Title VII.

Employers, especially those in jurisdictions where state or local laws do not protect transgender persons, should review and update their EEO, non-discrimination and non-harassment, background screening, and other employment policies.  Similarly, employers should train their supervisors and managers to guard against possible harassment, discrimination, or retaliation claims.

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