Most employers are aware that Title VII of the Civil Rights Act of 1964 protects employees in certain “protected classes,” including race, color, religion, national origin, sex and age. Discrimination or harassment that is not based on one of these protected classes, or pursuant to another rule or regulation such as the Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, or the Uniformed Services Employment and Reemployment Rights Act, is generally not actionable and does not create employer liability.
In the past, transgendered employees who were harassed or discriminated against were often left without recourse. Numerous courts held that this type of discrimination was not discrimination based on sex, and therefore was not actionable under Title VII.1 In fact, it was not until the Supreme Court's decision in Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), that the tide changed. In this case, the United States Supreme Court clarified Title VII's scope, holding that Title VII's reference to ‘sex' encompassed both the biological differences between men and women as well as discrimination based on a failure to confirm to stereotypical gender norms.”1
Thereafter, courts began utilizing a narrow analysis relating to discrimination against transgender employees. Discrimination against a transgendered or transsexual employee was not actionable sex discrimination under Title VII unless a plaintiff could show that the employer acted on sex stereotypes to punish gender non-conformity.
On April 20, 2012, the Equal Employment Opportunity Commission (“EEOC”) addressed this narrow approach in the case Macy v. Holder. Ms. Mia Macy, a transgender employee and police officer in Phoenix, Arizona, was in the process of relocating to San Francisco. At this time, she was still known as male, having not yet made the transition to being female. Ms. Macy applied for a position as a male, with the Bureau of Alcohol, Tobacco, Firearms and Explosives, and was told that the job was hers, pending completion of a background check. In the interim, Ms. Macy informed her future employer that she was in the process of transitioning from male to female. Days later, Ms. Macy was told that the position was no longer available due to budget reductions. In fact, the position had not been cut, but was instead filled by another individual. In its decision, the EEOC held that any sort of transgender discrimination is sex discrimination, regardless of whether it involves gender-based stereotyping, because it inherently involves taking gender (and therefore sex) into account. This is true even where the employer takes action that reflects animus against transgender or transsexual employees or a desire to exclude them from the workplace, rather than a specific concern about gender non-conformity.
Whether the EEOC's ruling will be followed by the various courts throughout the nation remains to be seen. The full text of the EEOC's opinion in Macy v. Holder is available here: http://tinyurl.com/7ngx2ht.
1 See e.g., Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1087 (7th Cir. 1984) (concluding that discrimination against plaintiff was “not because she is female, but because she is transsexual”).
1 Id. at 250-51 (plurality opinion; id. at 258-61 (White, J., concurring); id. at 272-73 (O'Connor, J., concurring).