In April 2012, the EEOC Determined in Mia Macy v. Eric Holder That Discrimination Against a Transgender Woman Violated Title VII
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| Women's Rights - So Yesterday... |
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| Mia Macy |
Once upon a time, only Government employees and members of Unions had any sort of job security. The rest of American workers were employed "at-will," and could be fired for any reason. At that point in our history, companies had carte blanche to refuse to hire women, minorities, disabled people, older workers or "foreigners."
Today, the employment at-will doctrine still runs deep in America, but a number of exceptions to that doctrine designed to create equal employment opportunities have been passed by our Congress.
True change began with the enactment of the Civil Rights Act of 1964 (now commonly referred to as "Title VII"). The central focus of Title VII at the outset was to promote fair employment treatment for women and African-Americans (then referred to as "blacks"). Prior to the enactment of Title VII, blacks were routinely denied employment opportunities, and women were subjected to a very low glass ceiling and very high quotient of sexual harassment.
Prior to the passing of the Age Discrimination in Employment Act in 1967, workers over the age of 40 had no protection against job discrimination based upon age.
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| Perfectly Fine - Until 1986 |
The term "hostile work environment" did not enter into the American vernacular until the 1986 Supreme Court decision in Meritor Savings Bank v. Vinson, where the Court held that a woman who had been subjected to sexual harassment could sue for damages arising out of her humiliation and anguish even though she had not suffered a demotion or loss of her job.
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| Ramp Installed - 1990 |
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| 1rst FMLA Babies Now in College! |
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| Sign of Times: Same-Sex Marriage Symbol |
While the LGBT (Lesbian, Gay, Bisexual, and Transgender) movement is gaining force, the fact is that, as of April 11, 2013, same-sex marriage is legal in only 9 states (plus D.C.), and is banned in 38 states (3 states,New Mexico, New Jersey and Rhode Island, have abstained on the issue).
April 20, 2013 will mark the one-year anniversary of the EEOC's finding in Macy v. Holder that "discrimination based on gender identity, change of sex, and/or transgender status is cognizable [i.e. unlawful] under Title VII."
The U.S. Supreme Court has yet to decide this issue, nor has Congress formally amended Title VII to include LGBT protection. Hence, the EEOC's decision, while influential, is not yet the law of the land.
The Macy decision is well conceived and supported. Rather than try and summarize it, I have simply reprinted it below in its entirety.
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| Well-Reasoned, but Not Yet the Law |
BACKGROUND
Complainant, a transgender woman, was a police detective in Phoenix,
Arizona. In December 2010 she decided to relocate to San Francisco
for family reasons. According to her formal complaint, Complainant was
still known as a male at that time, having not yet made the transition
to being a female.
Complainant’s supervisor in Phoenix told her that the Bureau of Alcohol,
Tobacco, Firearms and Explosives (Agency) had a position open at its
Walnut Creek crime laboratory for which the Complainant was qualified.
Complainant is trained and certified as a National Integrated Ballistic
Information Network (NIBIN) operator and a BrassTrax ballistics
investigator.
Complainant discussed the position with the Director of the Walnut
Creek lab by telephone, in either December 2010 or January 2011, while
still presenting as a man. According to Complainant, the telephone
conversation covered her experience, credentials, salary and benefits.
Complainant further asserts that, following the conversation, the Director
told her she would be able to have the position assuming no problems arose
during her background check. The Director also told her that the position
would be filled as a civilian contractor through an outside company.
Complainant states that she talked again with the Director in January
2011 and asked that he check on the status of the position. According to
Complainant in her formal complaint, the Director did so and reasserted
that the job was hers pending completion of the background check.
Complainant asserts, as evidence of her impending hire, that Aspen of
DC (“Aspen”),FN. 2, the contractor responsible for filling the position,
contacted her to begin the necessary paperwork and that an investigator
from the Agency was assigned to do her background check. FN. 3
On March 29, 2011, Complainant informed Aspen via email that she was
in the process of transitioning from male to female and she requested
that Aspen inform the Director of the Walnut Creek lab of this change.
According to Complainant, on April 3, 2011, Aspen informed Complainant
that the Agency had been informed of her change in name and gender.
Five days later, on April 8, 2011, Complainant received an email from
the contractor’s Director of Operations stating that, due to federal
budget reductions, the position at Walnut Creek was no longer available.
According to Complainant, she was concerned about this quick change
in events and on May 10, 2011, FN. 4, she contacted an agency EEO counselor
to discuss her concerns. She states that the counselor told her that
the position at Walnut Creek had not been cut but, rather, that someone
else had been hired for the position. Complainant further states that
the counselor told her that the Agency had decided to take the other
individual because that person was farthest along in the background
investigation. FN.5 Complainant claims that this was a pretextual explanation
because the background investigation had been proceeding on her as well.
Complainant believes she was incorrectly informed that the position
had been cut because the Agency did not want to hire her because she
is transgender.
The EEO counselor’s report indicates that Complainant alleged that
she had been discriminated against based on sex, and had specifically
described her claim of discrimination as “change in gender (from male
to female).”
On June 13, 2011, Complainant filed her formal EEO complaint with the
Agency. On her formal complaint form, Complainant checked off “sex”
and the box “female,” and then typed in “gender identity” and
“sex stereotyping” as the basis of her complaint. In the narrative
accompanying her complaint, Complainant stated that she was discriminated
against on the basis of “my sex, gender identity (transgender woman)
and on the basis of sex stereotyping.”
On October 26, 2011, the Agency issued Complainant a Letter of Acceptance,
stating that the “claim alleged and being accepted and referred for
investigation is the following: Whether you were discriminated against
based on your gender identity sex (female) stereotyping when on May 5,
2011, you learned that you were not hired as a Contractor for the position
of [NIBIN] Ballistics Forensic Technician in the Walnut Creek Lab,
San Francisco Field Office.” The letter went on to state, however,
that “since claims of discrimination on the basis of gender identity
stereotyping cannot be adjudicated before the [EEOC], your claims will
be processed according to Department of Justice policy.” The letter
provided that if Complainant did not agree with how the Agency had
identified her claim, she should contact the EEO office within 15 days.
The Department of Justice has one system for adjudicating claims of sex
discrimination under Title VII and a separate system for adjudicating
complaints of sexual orientation and gender identity discrimination by
its employees. This separate process does not include the same rights
offered under Title VII and the EEOC regulations set forth under 29
C.F.R. Part 1614. See Department of Justice Order 1200.1, Chapter 4-1,
B.7.j, found at http://www.justice.gov/jmd/ps/chpt4-1.html (last accessed
on March 30, 2012). While such complaints are processed utilizing the
same EEO complaint process and time frames – including an ADR program,
an EEO investigation and issuance of a final Agency decision – the
Department of Justice process allows for fewer remedies and does not
include the right to request a hearing before an EEOC Administrative
Judge or the right to appeal the final Agency decision to the Commission.
On November 8, 2011, Complainant’s attorney contacted the Agency by
letter to explain that the claims that Complainant had set forth in
the formal complaint had not been correctly identified by the Agency.
The letter explained that the claim as identified by the Agency was both
incomplete and confusing. The letter noted that “[Complainant] is a
transgender woman who was discriminated against during the hiring process
for a job with [the Agency],” and that the discrimination against
Complainant was based on “separate and related” factors, including on
the basis of sex, sex stereotyping, sex due to gender transition/change
of sex, and sex due to gender identity. Thus, Complainant disagreed
with the Agency’s contention that her claim in its entirety could not
be adjudicated through the Title VII and EEOC process simply because of
how she had stated the alleged bases of discrimination.
On November 18, 2011, the Agency issued a correction to its Letter
of Acceptance in response to Complainant’s November 8, 2011 letter.
In this letter, the Agency stated that it was accepting the complaint
“on the basis of sex (female) and gender identity stereotyping.”
However, the Agency again stated that it would process only her claim
“based on sex (female)” under Title VII and the EEOC’s Part 1614
regulations. Her claim based on “gender identity stereotyping” would
be processed instead under the Agency’s “policy and practice,”
including the issuance of a final Agency decision from the Agency’s
Complaint Adjudication Office.
CONTENTIONS ON APPEAL
On December 6, 2011, Complainant, through counsel, submitted a Notice
of Appeal to the Commission asking that it adjudicate the claim that
she was discriminated against on the basis of “sex stereotyping,
sex discrimination based gender transition/change of sex, and sex
discrimination based gender identity” when she was denied the position
as an NIBIN ballistics technician.
Complainant argues that EEOC has jurisdiction over her entire claim.
She further asserts that the Agency’s “reclassification” of her
claim of discrimination into two separate claims of discrimination –
one “based on sex (female) under Title VII” which the Agency will
investigate under Title VII and the EEOC’s Part 1614 regulations,
and a separate claim of discrimination based on “gender identity
stereotyping” which the Agency will investigate under a separate
process designated for such claims -- is a “de facto dismissal”
of her Title VII claim of discrimination based on gender identity and
transgender status.
In response to Complainant’s appeal, the Agency sent a letter to the
Commission on January 11, 2012, arguing that Complainant’s appeal was
“premature” because the Agency had accepted a claim designated as
discrimination “based on sex (female).”
In response to the Agency’s January 11, 2012 letter, Complainant wrote
to the Agency on February 8, 2012, stating that, in light of how the
Agency was characterizing her claim, she wished to withdraw her claim
of “discrimination based on sex (female),” as characterized by the
Agency, and to pursue solely the Agency’s dismissal of her complaint
of discrimination based on her gender identity, change of sex and/or
transgender status. In a letter to the Commission dated February 9, 2012,
Complainant explained that she had withdrawn the claim “based on sex
(female)” as the Agency had characterized it, in order to remove any
possible procedural claim that her appeal to the Commission was premature.
Complainant reiterates her contention that the Agency mischaracterized her
claim and asks the Commission to rule on her appeal that the Agency should
investigate, under Title VII and the EEOC’s Part 1614 regulations,
her claim of discriminatory failure to hire based on her gender identity,
change of sex, and/or transgender status.
ANALYSIS AND FINDINGS
The narrative accompanying Complainant’s complaint makes clear that
she believes she was not hired for the position as a result of making
her transgender status known. As already noted, Complainant stated
that she was discriminated against on the basis of “my sex, gender
identity (transgender woman) and on the basis of sex stereotyping.”
In response to her complaint, the Agency stated that claims of gender
identity discrimination “cannot be adjudicated before the [EEOC].”
See Agency Letters of October 26, 2011 and November 18, 2011. Although it
is possible that the Agency would have fully addressed her claims under
that portion of her complaint accepted under the 1614 process, the
Agency’s communications prompted in Complainant a reasonable belief
that the Agency viewed the gender identity discrimination she alleged
as outside the scope of Title VII’s sex discrimination prohibitions.
Based on these communications, Complainant believed that her complaint
would not be investigated effectively by the Agency, and she filed the
instant appeal.
EEOC Regulation 29 C.F.R. §1614.107(b) provides that where an agency
decides that some, but not all, of the claims in a complaint should be
dismissed, it must notify the complainant of its determination. However,
this determination is not appealable until final action is taken on the
remainder of the complaint. In apparent recognition of the operation of
§1614.107(b), Complainant withdrew the accepted portion of her complaint
from the 1614 process so that the constructive dismissal of her gender
identity discrimination claim would be a final decision and the matter
ripe for appeal.
In the interest of resolving the confusion regarding a recurring legal
issue that is demonstrated by this complaint’s procedural history,
as well as to ensure efficient use of resources, we accept this appeal
for adjudication. Moreover, EEOC’s responsibilities under Executive
Order 12067 for enforcing all Federal EEO laws and leading the Federal
government’s efforts to eradicate workplace discrimination, require,
among other things, that EEOC ensure that uniform standards be implemented
defining the nature of employment discrimination under the statutes
we enforce. Executive Order 12067, 43 F.R. 28967, § 1-301(a) (June
30, 1978). To that end, the 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, and may therefore be processed
under Part 1614 of EEOC’s federal sector EEO complaints process.
We find that the Agency mistakenly separated Complainant’s complaint
into separate claims: one described as discrimination based on “sex”
(which the Agency accepted for processing under Title VII) and others that
were alternatively described by Complainant as “sex stereotyping,”
“gender transition/change of sex,” and “gender identity”
(Complainant Letter of Nov. 8, 2011); by the Agency as “gender
identity stereotyping” (Agency Letter Nov. 18, 2011); and finally
by Complainant as “gender identity, change of sex and/or transgender
status” (Complainant Letter Feb. 8, 2012). While Complainant could
have chosen to avail herself of the Agency’s administrative procedures
for discrimination based on gender identity, she clearly expressed
her desire to have her claims investigated through the 1614 process,
and this desire should have been honored. Each of the formulations of
Complainant’s claims are simply different ways of stating the same
claim of discrimination “based on . . . sex,” a claim cognizable
under Title VII.
Title VII states that, except as otherwise specifically provided,
“[a]ll personnel actions affecting [federal] employees or applicants
for employment … shall be made free from any discrimination based
on …sex ….” 42 U.S.C. § 2000e-16(a) (emphasis added). Cf. 42
U.S.C. §§ 2000e-2(a)(1), (2) (it is unlawful for a covered employer to
“fail or refuse to hire or to discharge any individual, or otherwise
to discriminate with respect to his compensation, terms, conditions, or
privileges of employment,” or to “limit, segregate, or classify his
employees or applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s
. . . sex”) (emphasis added).
As used in Title VII, the term “sex” “encompasses both sex—that
is, the biological differences between men and women—and gender.” See
Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); see also Smith
v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (“The Supreme Court
made clear that in the context of Title VII, discrimination because of
‘sex’ includes gender discrimination.”). As the Eleventh Circuit
noted in Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011), six
members of the Supreme Court in Price Waterhouse agreed that 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. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 239
(1989) (emphasis added) (“Congress’ intent to forbid employers to
take gender into account in making employment decisions appears on the
face of the statute.”).
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 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.
In Price Waterhouse, the employer refused to make a female senior manager,
Hopkins, a partner at least in part because she did not act as some of
the partners thought a woman should act. Id. at 230–31, 235. She was
informed, for example, that to improve her chances for partnership
she should “walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry.”
Id. at 235. The Court concluded that discrimination for failing to
conform with gender-based expectations violates Title VII, holding that
“[i]n the specific context of sex stereotyping, an employer who acts
on the basis of a belief that a woman cannot be aggressive, or that she
must not be, has acted on the basis of gender.” Id. at 250.
Although the partners at Price Waterhouse discriminated against
Ms. Hopkins for failing to conform to stereotypical gender norms,
gender discrimination occurs any time an employer treats an employee
differently for failing to conform to any gender-based expectations
or norms. “What matters, for purposes of . . . the Price Waterhouse
analysis, is that in the mind of the perpetrator the discrimination is
related to the sex of the victim.” Schwenk, 204 F.3d at 1201–02;
see also Price Waterhouse, 490 U.S. at 254–55 (noting the illegitimacy
of allowing “sex-linked evaluations to play a part in the [employer’s]
decision-making process”).
“Title VII does identify one circumstance in which an employer may
take gender into account in making an employment decision, namely,
when gender is a ‘bona fide occupational qualification [ (BFOQ) ]
reasonably necessary to the normal operation of th[e] particular business
or enterprise.’” Price Waterhouse, 490 U.S. at 242 (quoting 42
U.S.C. § 2000e-2(e)). Even then, “the [BFOQ] exception was in fact
meant to be an extremely narrow exception to the general prohibition
of discrimination on the basis of sex.’” See Phillips v. Martin
Marietta Corp., 400 U.S. 542, 544 (1971) (Marshall, J., concurring).
“The only plausible inference to draw from this provision is that,
in all other circumstances, a person’s gender may not be considered in
making decisions that affect her.” Price Waterhouse, 490 U.S. at 242. FN. 6.
When an employer discriminates against someone because the person
is transgender, the employer has engaged in disparate treatment
“related to the sex of the victim.” See Schwenk, 204 F.3d at 1202.
This is true regardless of whether an employer discriminates against
an employee because the individual has expressed his or her gender
in a non-stereotypical fashion, because the employer is uncomfortable
with the fact that the person has transitioned or is in the process of
transitioning from one gender to another, or because the employer simply
does not like that the person is identifying as a transgender person.
In each of these circumstances, the employer is making a gender-based
evaluation, thus violating the Supreme Court’s admonition that “an
employer may not take gender into account in making an employment
decision.” Price Waterhouse, 490 U.S. at 244.
Since Price Waterhouse, courts have widely recognized the availability
of the sex stereotyping theory as a valid method of establishing
discrimination “on the basis of sex” in many scenarios involving
individuals who act or appear in gender-nonconforming ways. FN. 7. And since
Price Waterhouse, courts also have widely recognized the availability
of the sex stereotyping theory as a valid method of establishing
discrimination “on the basis of sex” in scenarios involving
transgender individuals.
For example, in Schwenk v. Hartford, a prison guard had sexually assaulted
a pre-operative male-to-female transgender prisoner, and the prisoner
sued, alleging that the guard had violated the Gender Motivated Violence
Act (GMVA), 42 U.S.C. § 13981. 204 F.3d at 1201–02. The U.S. Court
of Appeals for the Ninth Circuit found that the guard had known that the
prisoner “considered herself a transsexual and that she planned to seek
sex reassignment surgery in the future.” Id. at 1202. According to
the court, the guard had targeted the transgender prisoner “only after
he discovered that she considered herself female[,]” and the guard was
“motivated, at least in part, by [her] gender”—that is, “by her
assumption of a feminine rather than a typically masculine appearance or
demeanor.” Id. On these facts, the Ninth Circuit readily concluded
that the guard’s attack constituted discrimination because of gender
within the meaning of both the GMVA and Title VII.
The court relied on Price Waterhouse, reasoning that it stood for the
proposition that discrimination based on sex includes discrimination
based on a failure “to conform to socially-constructed gender
expectations.” Id. at 1201–02. Accordingly, the Ninth Circuit
concluded, discrimination against transgender females – i.e.,
“as anatomical males whose outward behavior and inward identity
[do] not meet social definitions of masculinity” – is actionable
discrimination “because of sex.” Id. (emphasis added); cf. Rosa
v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000)
(finding that under Price Waterhouse, a bank’s refusal to give a loan
application to a biologically-male plaintiff dressed in “traditionally
feminine attire” because his “attire did not accord with his male
gender” stated a claim of illegal sex discrimination in violation of
the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691–1691f).
Similarly, in Smith v. City of Salem, the plaintiff was “biologically
and by birth male.” 378 F.3d at 568. However, Smith was diagnosed
with Gender Identity Disorder (GID), and began to present at work as a
female (in accordance with medical protocols for treatment of GID). Id.
Smith’s co-workers began commenting that her appearance and mannerisms
were “not masculine enough.” Id. Smith’s employer later subjected
her to numerous psychological evaluations, and ultimately suspended her.
Id. at 569–70. Smith filed suit under Title VII alleging that her
employer had discriminated against her because of sex, “both because
of [her] gender non-conforming conduct and, more generally, because of
[her] identification as a transsexual.” Id. at 571 (emphasis added).
The district court rejected Smith’s efforts to prove her case using
a sex-stereotyping theory, concluding that it was really an attempt
to challenge discrimination based on “transsexuality.” Id.
The U.S. Court of Appeals for the Sixth Circuit reversed, stating that
the district court’s conclusion:
cannot be reconciled with Price Waterhouse, which does not make Title
VII protection against sex stereotyping conditional or provide any
reason to exclude Title VII coverage for non sex-stereotypical behavior
simply because the person is a transsexual. As such, discrimination
against a plaintiff who is a transsexual—and therefore fails to
act and/or identify with his or her gender—is no different from the
discrimination directed against [the plaintiff] in Price Waterhouse who,
in sex-stereotypical terms, did not act like a woman. Sex stereotyping
based on a person’s gender non-conforming behavior is impermissible
discrimination, irrespective of the cause of that behavior; a label,
such as “transsexual” is not fatal to a sex discrimination claim
where the victim has suffered discrimination because of his or her gender
non-conformity. Accordingly, we hold that Smith has stated a claim for
relief pursuant to Title VII’s prohibition of sex discrimination.
Id. at 574–75. FN. 8.
Finally, as the Eleventh Circuit suggested in Glenn v. Brumby, 663 F.3d
1312 (11th Cir. 2011), consideration of gender stereotypes will inherently
be part of what drives discrimination against a transgendered individual.
In that case, the employer testified at his deposition that it had fired
Vandiver Elizabeth Glenn, a transgender woman, because he considered it
“inappropriate” for her to appear at work dressed as a woman and that
he found it “unsettling” and “unnatural” that she would appear
wearing women’s clothing. Id. at 1320. The firing supervisor further
testified that his decision to dismiss Glenn was based on his perception
of Glenn as “a man dressed as a woman and made up as a woman,” and
admitted that his decision to fire her was based on “the sheer fact
of the transition.” Id. at 1320–21. According to the Eleventh
Circuit, this testimony “provides ample direct evidence” to support
the conclusion that the employer acted on the basis of the plaintiff’s
gender non-conformity and therefore granted summary judgment to her.
Id. at 1321.
In setting forth its legal reasoning, the Eleventh Circuit explained:
A person is defined as transgender precisely because of the perception
that his or her behavior transgresses gender stereotypes. “[T]he
very acts that define transgender people as transgender are those that
contradict stereotypes of gender-appropriate appearance and behavior.”
Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title
VII, 95 Cal. L. Rev. 561, 563 (2007); see also Taylor Flynn, Transforming
the Debate: Why We Need to Include Transgender Rights in the Struggles
for Sex and Sexual Orientation Equality, 101 Colum. L.Rev. 392, 392 (2001)
(defining transgender persons as those whose “appearance, behavior, or
other personal characteristics differ from traditional gender norms”).
There is thus a congruence between discriminating against transgender and
transsexual individuals and discrimination on the basis of gender-based
behavioral norms.
Accordingly, discrimination against a transgender individual because of
her gender-nonconformity is sex discrimination, whether it’s described
as being on the basis of sex or gender. Glenn v. Brumby, 663 F.3d 1312, 1316–17
(11th Cir. 2011). FN. 9.
There has likewise been a steady stream of district court decisions
recognizing that discrimination against transgender individuals on the
basis of sex stereotyping constitutes discrimination because of sex.
Most notably, in Schroer v. Billington, the Library of Congress rescinded an
offer of employment it had extended to a transgender job applicant after
the applicant informed the Library’s hiring officials that she intended
to undergo a gender transition. See 577 F. Supp. 2d 293 (D.D.C. 2008).
The U.S. District Court for the District of Columbia entered judgment
in favor of the plaintiff on her Title VII sex discrimination claim.
According to the district court, it did not matter “for purposes of
Title VII liability whether the Library withdrew its offer of employment
because it perceived Schroer to be an insufficiently masculine man,
an insufficiently feminine woman, or an inherently gender-nonconforming
transsexual.” Id. at 305. In any case, Schroer was “entitled to
judgment based on a Price-Waterhouse-type claim for sex stereotyping
. . . .” Id. FN. 10.
To be sure, the members of Congress that enacted Title VII in 1964
and amended it in 1972 were likely not considering the problems of
discrimination that were faced by transgender individuals. But as the
Supreme Court recognized in Oncale v. Sundowner Offshore Services, Inc.:
[S]tatutory prohibitions often go beyond the principal evil [they
were passed to combat] to cover reasonably comparable evils, and it
is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed. Title VII
prohibits “discriminat[ion] . . . because of . . . sex” in
. . . employment. [This] . . . must extend to [sex-based discrimination]
of any kind that meets the statutory requirements.
523 U.S. at 79-80; see also Newport News, 462 U.S. at 679–81 (rejecting
the argument that discrimination against men does not violate Title
VII despite the fact that discrimination against women was plainly the
principal problem that Title VII’s prohibition of sex discrimination
was enacted to combat).
Although most courts have found protection for transgender people
under Title VII under a theory of gender stereotyping, evidence of
gender stereotyping is simply one means of proving sex discrimination.
Title VII prohibits discrimination based on sex whether motivated by
hostility, FN. 11, by a desire to protect people of a certain gender, FN. 12, by
assumptions that disadvantage men, FN. 13, by gender stereotypes, FN. 14, or by
the desire to accommodate other people’s prejudices or discomfort. FN. 15
While evidence that an employer has acted based on stereotypes about
how men or women should act is certainly one means of demonstrating
disparate treatment based on sex, “sex stereotyping” is not itself
an independent cause of action. As the Price Waterhouse Court noted,
while “stereotyped remarks can certainly be evidence that gender
played a part” in an adverse employment action, the central question
is always whether the “employer actually relied on [the employee’s]
gender in making its decision.” Id. at 251 (emphasis in original).
Thus, a transgender person who has experienced discrimination based
on his or her gender identity may establish a prima facie case of
sex discrimination through any number of different formulations.
These different formulations are not, however, different claims
of discrimination that can be separated out and investigated within
different systems. Rather, they are simply different ways of describing
sex discrimination.
For example, Complainant could establish a case of sex discrimination
under a theory of gender stereotyping by showing that she did not get
the job as an NIBIN ballistics technician at Walnut Creek because the
employer believed that biological men should consistently present as
men and wear male clothing.
Alternatively, if Complainant can prove that the reason that she did
not get the job at Walnut Creek is that the Director was willing to hire
her when he thought she was a man, but was not willing to hire her once
he found out that she was now a woman—she will have proven that the
Director discriminated on the basis of sex. Under this theory, there
would actually be no need, for purposes of establishing coverage under
Title VII, for Complainant to compile any evidence that the Director
was engaging in gender stereotyping.
In this respect, gender is no different from religion. Assume that an
employee considers herself Christian and identifies as such. But assume
that an employer finds out that the employee’s parents are Muslim,
believes that the employee should therefore be Muslim, and terminates
the employee on that basis. No one would doubt that such an employer
discriminated on the basis of religion. There would be no need for the
employee who experienced the adverse employment action to demonstrate that
the employer acted on the basis of some religious stereotype—although,
clearly, discomfort with the choice made by the employee with regard to
religion would presumably be at the root of the employer’s actions.
But for purposes of establishing a prima facie case that Title VII has
been violated, the employee simply must demonstrate that the employer
impermissibly used religion in making its employment decision.
The District Court in Schroer provided reasoning along similar lines:
Imagine that an employee is fired because she converts from Christianity
to Judaism. Imagine too that her employer testifies that he harbors no
bias toward either Christians or Jews but only ‘converts.’ That would
be a clear case of discrimination ‘because of religion.’ No court
would take seriously the notion that ‘converts’ are not covered by
the statute. Discrimination “because of religion” easily encompasses
discrimination because of a change of religion.
577 F. Supp. 2d at 306.
Applying Title VII in this manner does not create a new “class” of
people covered under Title VII—for example, the “class” of people
who have converted from Islam to Christianity or from Christianity
to Judaism. Rather, it would simply be the result of applying the
plain language of a statute prohibiting discrimination on the basis
of religion to practical situations in which such characteristics are
unlawfully taken into account. See Brumby, 663 F.3d at 1318–19 (noting
that “all persons, whether transgender or not” are protected from
discrimination and “[a]n individual cannot be punished because of his
or her perceived gender non-conformity”).
Thus, we conclude that intentional discrimination against a transgender
individual because that person is transgender is, by definition,
discrimination “based on . . . sex,” and such discrimination therefore
violates Title VII. FN. 16.
[Certain Procedural Determinations/Instructions Omitted. Click Here to jump to same].
FOR THE COMMISSION:
April 20, 2012
______________________________
Bernadette B. Wilson
Acting Executive Officer
FOOTNOTES
1. The facts in this section are taken from the EEO Counselor’s Report
and the formal complaint of discrimination. Because this decision
addresses a jurisdictional issue, we offer no position on the facts
themselves and thus no position on whether unlawful discrimination
occurred in this case.
2. It appears from the record that Aspen of DC may be considered a
staffing firm. Under the Commission's Enforcement Guidance: Application
of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997),
we have recognized that a “joint employment” relationship may exist
where both the Agency and the “staffing firm” may be deemed employers.
The Commission makes no determination at this time as to whether or not
a “joint employment” relationship exists in this case as this issue
is not presently before us.
3. On March 28, 2011, Complainant received an e-mail from the contractor
asking her to fill out an application packet for the position. It is
unclear how far the background investigation had proceeded prior to
Complainant notifying the contractor of her gender change, but e-mails
included in the record indicate that the Agency’s Personnel Security
Branch had received Complainant’s completed security package, that
Complainant had been interviewed by a security investigator, and that the
investigator had contacted Complainant on March 31, 2011 and had indicated
that he “hope[d] to finish your investigation the first of next week.”
4. In the narrative accompanying her formal complaint, Complainant asserts
she contacted the Agency’s EEO Counselor on May 5, 2011. However,
the EEO Counselor’s report indicates that the initial contact occurred
on May 10, 2011.
5. The Counselor’s Report includes several email exchanges with various
Agency officials who informed the counselor of the circumstances by
which it was decided not to hire Complainant.
6. There are other, limited instances in which gender may be taken into
account, such as is in the context of a valid affirmative action plan, see
Johnson v. Santa Clara County Transportation Agency, 480 U.S. 616 (1987),
or relatedly, as part of a settlement of a pattern or practice claim.
7. See, e.g., Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1041
(8th Cir. 2010) (concluding that evidence that a female “tomboyish”
plaintiff had been fired for not having the “Midwestern girl look”
suggested “her employer found her unsuited for her job . . . because her
appearance did not comport with its preferred feminine stereotype”);
Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009) (an
effeminate gay man who did not conform to his employer’s vision of how
a man should look, speak, and act provided sufficient evidence of gender
stereotyping harassment under Title VII); Medina v. Income Support Div.,
413 F.3d 1131, 1135 (10th Cir. 2005) (involving a heterosexual female
who alleged that her lesbian supervisor discriminated against her on the
basis of sex, and finding that “a plaintiff may satisfy her evidentiary
burden [under Title VII] by showing that the harasser was acting to
punish the plaintiff’s noncompliance with gender stereotypes”);
Nichols v. Azteca Rest. Enters., 256 F.3d 864, 874–75 (9th Cir. 2001)
(concluding that a male plaintiff stated a Title VII claim when he was
discriminated against “for walking and carrying his tray ‘like a
woman’ – i.e., for having feminine mannerisms”); Simonton v. Runyon,
232 F.3d 33, 37 (2d Cir. 2000) (indicating that a gay man would have a
viable Title VII claim if “the abuse he suffered was discrimination
based on sexual stereotypes, which may be cognizable as discrimination
based on sex”); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 261 n.4 (1st Cir. 1999) (analyzing a gay plaintiff’s claim that
his co-workers harassed him by “mocking his supposedly effeminate
characteristics” and acknowledging that “just as a woman can ground
an action on a claim that men discriminated against her because she
did not meet stereotyped expectations of femininity . . . a man can
ground a claim on evidence that other men discriminated against him
because he did not meet stereotypical expectations of masculinity”);
Doe by Doe v. City of Belleville, 119 F.3d 563, 580–81 (7th Cir. 1997)
(involving a heterosexual male who was harassed by other heterosexual
males, and concluding that “a man who is harassed because his voice
is soft, his physique is slight, his hair is long, or because in some
other respect he . . . does not meet his coworkers’ idea of how men
are to appear and behave, is harassed ‘because of’ his sex”),
vacated and remanded on other grounds, 523 U.S. 1001 (1998).
8. See also Barnes v. City of Cincinnati, 401 F.3d 729, 741 (6th Cir. 2005)
(affirming a jury award in favor of a pre-operative transgender female,
ruling that “a claim for sex discrimination under Title VII . . . can
properly lie where the claim is based on ‘sexual stereotypes’” and
that the “district court therefore did not err when it instructed
the jury that it could find discrimination based on ‘sexual
stereotypes’”).
9. But see Etsitty v. Utah Trans. Auth., No. 2:04–CV–616, 2005
WL 1505610, at *4–5 (D. Utah June 24, 2005) (concluding that Price
Waterhouse is inapplicable to transsexuals), aff'd on other grounds,
502 F.3d 1215 (10th Cir.2007).
10. The district court in Schroer also concluded that discrimination
against a transgender individual on the basis of an intended, ongoing,
or completed gender transition is “literally discrimination ‘because
of . . . sex.’” Schroer, 577 F. Supp. 2d at 308; see also id. at
306–07 (analogizing to cases involving discrimination based on
an employee’s religious conversion, which undeniably constitutes
discrimination “because of . . . religion” under Title VII).
For other district court cases using sex stereotyping as grounds for
establishing coverage of transgender individuals under Title VII, see
Michaels v. Akal Security, Inc., No. 09-cv-1300, 2010 WL 2573988, at * 4
(D. Colo. June 24, 2010); Lopez v. River Oaks Imaging & Diag. Group, Inc.,
542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); Mitchell v. Axcan Scandipharm,
Inc., No. Vic. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006);
Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL
22757935 (W.D.N.Y. Sept. 26, 2003); Doe v. United Consumer Fin. Servs.,
No. 1:01 CV 111, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001).
11. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)
(recognizing that sexual harassment is actionable discrimination
“because of sex”); Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998) (“A trier of fact might reasonably find such
discrimination, for example, if a female victim is harassed in such
sex-specific and derogatory terms by another woman as to make it clear
that the harasser is motivated by general hostility to the presence of
women in the workplace.”).
12. See Int’l Union v. Johnson Controls, 499 U.S. 187, 191 (1991)
(policy barring all female employees except those who were infertile from
working in jobs that exposed them to lead was facially discriminatory
on the basis of sex).
13. See, e.g., Newport News, 462 U.S. at 679–81 (providing different
insurance coverage to male and female employees violates Title VII even
though women are treated better).
14. See, e.g., Price Waterhouse, 490 U.S. at 250–52.
15. See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 912
(7th Cir. 2010) (concluding that “assignment sheet that unambiguously,
and daily, reminded [the plaintiff, a black nurse,] and her co-workers
that certain residents preferred no black” nurses created a hostile
work environment); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77
(9th Cir. 1981) (a female employee could not lawfully be fired because
her employer’s foreign clients would only work with males); Diaz v. Pan
American World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (rejecting
customer preference for female flight attendants as justification for
discrimination against male applicants).
16. The Commission previously took this position in an amicus brief
docketed with the district court in the Western District of Texas
on Oct. 17, 2011, where it explained that “[i]t is the position of
the EEOC that disparate treatment of an employee because he or she is
transgender is discrimination “because of . . . sex” under Title
VII.” EEOC Amicus Brief in Pacheco v. Freedom Buick GMC Truck,
No. 07-116 (W.D. Tex. Oct. 17, 2011), Dkt. No. 30, at page 1, 2011
WL 5410751. With this decision, we expressly overturn, in light of
the recent developments in the caselaw described above, any contrary
earlier decisions from the Commission. See, e.g., Jennifer Casoni
v. United States Postal Service, EEOC DOC 01840104 (Sept. 28, 1984);
Campbell v. Dep’t of Agriculture, EEOC Appeal No. 01931703 (July 21,
1994); Kowalczyk v. Dep’t of Veterans Affairs, EEOC Appeal No. 01942053
(March 14, 1996).
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.
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