EEOC transgender ruling could open door to gay bias claims

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The recent ruling from the Equal Employment Opportunity Commission holding that transgendered workers can bring employment bias claims under Title VII is a “game changer” in employment discrimination law, and could lead to claims under the Act based on sexual orientation.

“It is without a doubt a watershed moment,” said Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco. “It is very significant to have the EEOC fully embrace the position that Title VII comprehensively and categorically protects transgendered people.”

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

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

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

The agency asserted that she could not bring a sex stereotyping claim under Title VII. Her recourse, the agency determined, was through the internal Department of Justice system in place for considering claims based on gender identity and sexual orientation bias.

But on appeal the EEOC reversed, ruling that transgender discrimination claims fall under Title VII’s protections.

“That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important,” the EEOC decision in Macy v. Holder states. “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.”

Broader application?

While a number of federal trial and appellate courts have come to the same conclusion as the EEOC did, attorneys said this case is particularly significant because it sets a national standard for treatment of transgender-based discrimination claims.

“I think we can look at this as a turning point,” said Philip  Miles III, an associate in the State College, Pa., office of McQuaide Blasko.

“Having the protection of federal sex-discrimination law is especially critical for transgender people who live in the 34 states that lack transgender-inclusive nondiscrimination laws,” said Masen Davis, executive director of the San Francisco-based Transgender Law Center, which represented Macy in the case. “This is a game changer.”

The ruling could also open the door for allowing other plaintiffs, such as those alleging bias on the basis of sexual orientation, to sue under Title VII.

“I think that we are going to start to see courts revisiting these old holdings that Title VII doesn’t protect gay people,” Minter said.

According to Miles, under federal law, “sexual orientation is a separate issue and will be analyzed separately.”

However, there could be more claims by gay employees “using the sexual stereotyping theory.”

The ruling should serve as a signal to employers to develop policies that discourage harassment based on traits associated with a particular gender identity or orientation, said Minter. The case “has huge ramifications in terms of the impact on business culture and on broader social culture,” he said.

Some courts have already accepted such an analysis. In 2009 the 3rd Circuit, in the case Prowel v. Wise Business Forms, ruled that a plaintiff who describes himself “as an effeminate man and [who] believes that his mannerisms caused him not to ‘fit in’ with the other men” in his workplace could bring a gender stereotyping claim under Title VII.

The plaintiff in that case, who is gay, claimed that he was harassed in the workplace because he has a “high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; … crossed his legs and had a tendency to shake his foot ‘the way a woman would sit,’” among other characteristics.

The court said that while Title VII does not provide a cause of action for bias claims based on sexual orientation, the plaintiff’s claim that he was harassed based on his “failure to conform to gender stereotypes” could proceed to a jury.

Minter expects more courts to follow suit after the EEOC decision.

“If you think about it, [all] anti-gay bias or prejudice is directly rooted in gender stereotypes,” Minter said. “Sexual orientation is by definition based on gender.”

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

But on appeal the EEOC reversed, ruling that transgender discrimination claims fall under Title VII’s protections.

“That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important,” the EEOC decision in Macy v. Holder states. “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.”