EEOC Recognizes Transgender Discrimination

On April 20, 2012, the Equal Employment Opportunity Commission (EEOC) issued an opinion in Mia Macy v. Eric Holder stating that a transgender individual could bring a gender identity and transgender discrimination claim under Title VII.    Macy applied for a crime lab position with the Bureau of Alcohol, Tobacco, Firearms and Explosives.   Seemingly well qualified, Macy was given indications that the job was his, subject to a background check.   During the selection process, however, Macy informed the civilian contractor involved in the hiring process about his transition from a male to a female.   About a week later, Macy was advised that the position was no longer available due to budget restraints.   Upon additional inquiry, Macy discovered the position was filled by another applicant.

In press releases, the Macy decision was described by some as “landmark.”    It is certainly significant in many respects.   First, all EEOC offices will now be required to accept and investigate gender identity and transgender discrimination claims.   The decision will also be binding on all federal agencies, which means they will be required to include transgender discrimination in their anti-discrimination policies.   Finally, while not binding on courts, it is another piece of authority that judges can use in allowing these types of claims to precede.   That being said, the Macy decision is hardly groundbreaking.   In 1989, the U.S. Supreme Court held in Price Waterhouse v. Hopkins  that sex discrimination included sex stereotyping (Hopkins was a female passed over for a promotion because she was not considered feminine enough).    Since Price Waterhouse, the Sixth Circuit Court of Appeals and several lower federal courts have held that discrimination based on transgender or gender non-conformity is prohibited by Title VII.   Several state legislatures have also outlawed such discrimination.    Currently twelve (12) states and the District of Columbia prohibit employment discrimination against transgender persons.   Texas, however, is not one of those states.

According to a 2011 UCLA study, there is an estimated 700,000 transgender people living in the United States, and an estimated 8 million people in this country who identify themselves as gay, lesbian or bi-sexual.  Although current legal trends seem favorable to extending Title VII protections to the former, according to the best DUI lawyer in Overland Park, the same cannot be said of the latter.   While arguably the same rationale could be used to cover sexual orientation discrimination (e.g. discrimination of individuals based on sexual and gender stereotypes), courts have been consistently opposed to extending Title VII protections to homosexuals.   That means that under federal law, and under most state laws, an employer can legally discriminate against workers due to their sexual orientation.

The Employment Non-Discrimination Act (ENDA) has been proposed to provide Title VII-like protections to employees on the basis of their sexual orientation or gender identity.   Different forms of this bill have been introduced in nearly every legislative session since 1994, but to date this bill has yet to pass both houses of Congress.

Although the Constitution cannot control prejudices, neither this court nor any other court should, directly or indirectly, legitimize them.

Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (D. Utah 1998).

25 Years of Success
John and his staff take the time to listen to his clients’ concerns, answer their questions, and work hard to achieve the best results.
More Posts

John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.