EEOC Determines that Discrimination Laws Protect Transgender Employees

On April 23, the EEOC issued an opinion determining “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.” In this case, a woman claimed she was denied a contractor job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after the agency learned she underwent a procedure to change her gender from man to woman. The woman originally applied for the position as a man and was informed she was virtually guaranteed the job. After the ATF learned of her procedure, it informed her that funding for her position had been cut. She later learned the ATF hired someone else for the job.

The EEOC’s decision should not be a surprise as federal courts have recognized that transgender employees are protected from discrimination by Title VII. On December 6, 2011, the 11th Circuit Court of Appeals determined that the termination of an employee based on her non-conformity with gender stereotypes constituted unlawful discrimination. In that case, the employee was born a male but identified as a female. The employee was diagnosed with Gender Identity Disorder.

The decisions of both the EEOC and the 11th Circuit involved government employees; however, the clear indication from the EEOC and the courts is that the same analysis will be applied to employees of private companies. Title VII, like most state statutes, does not specifically designate transgender employees as a protected class, but the EEOC and courts determined that discrimination against transgender employees is a form of sex discrimination. The EEOC and federal court decisions are likely to impact claims brought under state law because most state courts have determined that federal court decisions interpreting Title VII are applicable to claims brought under state law. It should be noted that 16 states and the District of Columbia currently have laws prohibiting discrimination based on gender identity.  

Contact: Jon Secrest

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