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Friday, June 15, 2012

Transgendered Employees Are Protected Against Discrimination

The EEOC, in a landmark decision, has declared that Title VII protects transgendered employees under its prohibition against sex discrimination. This ruling isn't too surprising considering that gender stereotyping has long been considered sex discrimination. Here's what EEOC said:
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. 
EEOC went on to say that sexual stereotyping isn't the only way that transgendered discrimination can be illegal:
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,11 by a desire to protect people of a certain gender,12 by assumptions that disadvantage men,13 by gender stereotypes,14 or by the desire to accommodate other people’s prejudices or discomfort.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.
EEOC went on to give examples of how a transgendered individual might prove 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.
Here's the part I found the most interesting, and I thought the analysis was spot-on. EEOC compared discrimination against transgendered employees to religious discrimination against a convert:
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.
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.
What does this all mean? How does it affect the rights of transgendered employees? EEOC is not a court and it isn't Congress, so it can't make law. The opinion gives us a glimpse as to how EEOC will view charges of discrimination brought by transgendered employees. That means transgendered employees will have an easier time convincing EEOC to find "cause" for their charges of discrimination. But that doesn't mean they necessarily win.

Once EEOC finds cause (or that they're unable to determine whether or not cause exists), the employee will still have to sue if the employer doesn't settle. That means the courts could decide differently than EEOC. It happens all the time that courts disagree with EEOC's world view.

This decision is a major step in the right direction. The only way to be sure of an outcome will be if Congress decides to clarify Title VII one way or the other, or if the Supreme Court rules on this issue. In the meantime, for now we can assume that transgendered employees have some rights under Title VII.


  1. he smiiles. i'll say one thing, Donna, unless you're a good enough lawyer to convince a jury that an orange is an apple i sure wouldn't use the comparison of a sex change to a change in religion to show discrimination. in fact as the opposing attorney i would throw that back in your face by showing that it was promoting a particular political ideology thus showing it to be a political decision rather than enforcement of law.

  2. Hi Griper! Fortunately, I don't have to do it. EEOC did it for me. I think it's a pretty terrific analogy myself.

  3. I think it was a really apt analogy myself! Really liked it.

  4. Thanks Kimberlee! I'm glad you enjoyed it.

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  6. Hey, I also think it was a great analogy, and discussed the court's analysis in my own blog, you should check it out at http://www.newyorkemploymentlawyerblog.com/2012/06/eeoc_rules_transgender_employe.html

  7. Thanks San Fran! It's always good to hear from another blogger. I'm glad you enjoyed it.


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