The Equal Employment Opportunity Commission (EEOC) recently ruled that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII of the Civil Rights Act of 1964 (Macy v. Holder, et al.). Employers should be aware that this decision gives transgendered persons an avenue under Title VII to pursue a federal discrimination claim and may herald an upcoming change to New York’s own anti-discrimination laws to protect an individual’s “gender identity or expression.”

The case involved a California woman who claimed she was denied a contractor job with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after the contractor learned she had undergone a procedure to change her gender from male to female. The complainant, Mia Macy, an Army veteran and former police detective, initially applied for the position as a man and was told that she was qualified for the position as a ballistics technician. Then she informed the contractor that she was changing her gender. After that, she was told the funding for the job was cut. It was later shown that someone else was hired for the position. She filed a complaint with the ATF, which told her that federal job discrimination laws did not apply to transgender people. According to the EEOC decision, the term “gender” encompasses not just a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity,” ruling that Macy’s claim may go forward.

This decision gives transgendered persons an avenue under Title VII to pursue a discrimination claim. Transgendered individuals were previously foreclosed from raising discrimination claims under the Americans with Disabilities Act. In 1993, the EEOC specifically excluded gender identity disorders from the definition of “disability for the purpose of the Americans with Disabilities Act. The EEOC’s Americans with Disabilities Act Technical Assistance Manual states that:

The following conditions are specifically excluded from the definition of “disability”: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.

The EEOC maintains that the ruling does not create a new cause of action, but rather clarifies that charges of gender stereotyping are considered claims of sex discrimination under existing law.

At present, New York State’s human rights, civil rights, and education laws prohibit discrimination on the basis of “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.”  This may soon change, as the New York State Assembly has passed the Gender Expression Non-Discrimination Act (GENDA). This act will amend New York State’s human rights law to bar “unlawful discriminatory practices” on the basis of “gender identity or expression.” GENDA will also add “gender identity and expression” to the list of biases that can lead to enhanced sentencing as enumerated in the Hate Crimes Act of 2000.

Sixteen states and the District of Columbia have laws prohibiting discrimination based on gender identity. Several cities in New York, including Albany, Buffalo, Ithaca, and New York City, and a few counties have adopted local laws prohibiting discrimination based on gender identity, change of sex, or transgender status in employment with each of those municipalities. Notably, this is the fifth time GENDA has passed in the Assembly. It has stalled in the Senate on four previous occasions. With the EEOC decision, comprehensive protection for transgender workers applies to both private and public employers across the United States. Should a transgender person file a complaint with the EEOC and the commission determines that the case has merit, the employer can now be sued for discrimination under Title VII.

For more information about how this may impact your business, or for assistance with preventative measures to help avoid facing claims under Title VII, please contact:

• David E. Leach (315.413.5450; dleach@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group