Monday, January 28, 2013

The EEOC on Transgender Employees and Sex Discrimination

I want to turn at this juncture in my guest blogging to some recent developments (some of which were briefly discussed previously on Workplace Prof Blog here) in the EEOC's position on anti-LGBT discrimination.

Last year, the EEOC issued a decision which is arguably one of the most important developments in transgender equality in recent years.  In the decision, Macy v. Holder, the EEOC found in a precedential opinion 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.”  Thus, under Macy, the EEOC’s official position is that anti-transgender discrimination is per se sex discrimination.

(See EEOC Digest of Equal Employment Opportunity Law ("Commission policy is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII."); see also Macy (“When an employer discriminates against someone because the person is transgender, the employer has engaged in [sex discrimination]... This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotpyical 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."))

The implications of Macy are thus potentially tremendous for transgender employees—if widely afforded deference, it would mean that gender identity discrimination is now categorically prohibited under Title VII, without ENDA or any other type of legislative movement at the federal level.

This can be seen in many ways as a radical development.  Transgender employees (and indeed Lesbian/Gay/Bisexual/Transgender or "LGBT" employees generally) have long lacked explicit protections at the federal level, being relegated to the patchwork of anti-discrimination protections that exist on the state and local level.  (In addition, LGBT employees have long achieved some success raising an array of other legal claims in response to employment discrimination see e.g. here).  Thus, providing categorical protections for transgender employees under existing law (Title VII) would mark a truly important development for transgender equality.

On the other hand, from a doctrinal perspective, Macy is less radical than it might initially appear.  During the last 15 years, a consensus has slowly been developing in the federal courts of appeals (including the First, Sixth, Ninth and Eleventh Circuits) that discrimination against transgender individuals should, at least in most circumstances, be considered sex discrimination. (A number of district courts, e.g., here, have also arrived at a similar conclusion).  As such courts have reasoned, discrimination is against transgender people is, essentially by definition, targeted at such individuals because of their failure to conform to gender stereotypes.  And, the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins holds that discrimination based on a failure to conform to stereotypes about how men or women should appear or behave is actionable sex discrimination.  Pre-existing case law thus provided a strong foundation for the finding in Macy that anti-transgender discrimination is a per se form of sex discrimination, although it did typically not go so far as Macy in endorsing a per se rule. 

So what is the significance of Macy?   It remains to be seen whether the federal courts—who have not always been terribly deferential to the positions taken by the EEOC, even in regulations—will defer to Macy.  But coupled with the weight of circuit opinions preceding Macy, it seems likely that the decision will only hasten the trend towards treating anti-transgender discrimination as simply a form of sex discrimination.  Moreover, Macy is binding on internal adjudications regarding federal employees, and has a number of other important implications as well (although it may also have certain limitations as a guarantor of full transgender equality, see Analysis by NGLTF's Lisa Mottet here for an excellent discussion of both the positive implications and the potential limitations of Macy from the perspective of transgender equality)In short, there are good reasons to think that Macy may be the tipping point for understanding anti-transgender discrimination as a per se form of sex discrimination under federal law, and that we may soon be beyond the day when that proposition is open to reasonable dispute. 

In the next post, I will take up the issue of L/G/B plaintiffs, where the EEOC has also recently issued some recent holdings of interest, but where the legal landscape remains considerably more uncertain.

KRE

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