Transgender Protection Under Title VII Announced by EEOC

This post was written by Rania Afram and Eugene K. Connors.

In an April 20, 2012 decision, the Equal Employment Opportunity Commission (“EEOC”) solidified its intended protection of transgender employees under Title VII of the Civil Rights Act of 1964. The EEOC made it clear that an employer that discriminates against an employee or applicant on the basis of that person’s gender identity violates Title VII’s sex discrimination prohibitions. Because transgender people lack protection from adverse employment decisions in 34 states, this EEOC decision is a watershed moment for the transgender community. It also highlights the broad range of protected categories that could subject employers to more liability for discrimination.

This decision involved a transgender woman allegedly denied employment by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) after the ATF had learned of her gender transition. The then-male applicant, a veteran police detective with a military and law enforcement background, had applied for the job of ballistics technician, a forensic science technician who collects and identifies physical evidence related to criminal investigations. Certified and trained on the ATF ballistics computer system, she was on the cusp of hire, pending a background investigation. After she disclosed that she was transitioning from male to female, the ATF told her that the position was no longer available, but she later learned that it had hired someone else for the position.

The woman, represented by the Transgender Law Center, filed a formal equal employment opportunity complaint with the ATF. It alleged illegal discrimination based on “gender identity” and “sex stereotyping.” The ATF, in effect, responded by asserting that Title VII did not apply to transgender employees. On appeal to the EEOC, the Commission stated: “[T]he 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 . . .”

This decision’s clear message to both public (government) and private employers is that Title VII protects applicants and employees who may not “fit” social or cultural gender-based norms, from employment discrimination based on each person’s identity, behavior, or appearance. Put simply, Title VII extends beyond protecting employees from adverse employment discrimination based on non-job-related factors such as race or national original to gender, meaning, in the EEOC’s words, to the “cultural and social aspects associated with masculinity and femininity,” that includes transgender status. 

The implications of this decision go beyond hiring “into” the workplace. Workplace issues include an employer’s need to insulate transgender employees from ostracism and ridicule, and to balance employee interests in general on everyday issues such as restroom access and use. At a minimum, this will require sensitivity training of all employees (including management) on a repeating basis.

More information on Reed Smith's Discrimination practice can be found here.

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