Gender Identity in the Federal Workplace
By Peter J. Jeffrey, Esq., Member, and Alexis N. Tsotakos, Esq., Associate
The Jeffrey Law Group, PLLC, The Federal Employee’s Law Firm ®
The U. S. Supreme Court has explicitly stated that discrimination based on gender
stereotypes is prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et seq. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Last month the
U.S. Equal Employment Opportunity Commission (EEOC) applied that holding, finding
that discrimination based on transgender status is actionable under Title VII.
In Macy v. Department of Justice, EEOC Appeal No. 0120120821 (2012), an applicant
brought a complaint against the agency for discriminating against her on the basis of sex,
specifically alleging that she was not selected for a position because she is
transgender. In that case, Mia Macy, a police detective, learned of an open position with
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) available in the Walnut
Creek crime laboratory. Macy spoke telephonically with the Director at the Walnut
Creek lab on two occasions, discussing her experience, credentials, salary and
benefits. Both times they spoke, the Director indicated that Macy should have no
problem obtaining the position, so long as there were no issues that arose during her
background check. Subsequently, the contractor responsible for filling the position
initiated a background check on Macy.
On March 29, 2011, Macy contacted the contractor to inform it that she was in the
process of transition from male to female. She requested that the contractor alert the
Walnut Creek lab of this transition, and the contractor confirmed that it had done so on
April 3, 2011. Soon thereafter, on April 8, 2011, the contractor emailed Macy stating that,
due to budgetary restraints, the open position Macy had applied for was no longer
available. Macy initiated EEO counseling and learned that the position had not been cut,
but rather that another individual had been hired into the position. Macy filed a formal
EEO complaint, alleging that she had been discriminated against on the basis of her sex,
gender identity, and sex stereotyping.
After extensive back-and-forth with the agency to attempt to clarify her claims, Macy
filed an appeal with the Commission. The EEOC found 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.” See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (2012).
In so holding, the EEOC relied heavily on the Supreme Court’s landmark decision in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the Court held
that Title VII barred discrimination based on not only biological sex, but also on gender
stereotyping. Simply put, employers cannot discriminate against individuals who fail “to
conform to any gender-based expectations or norms,” and “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.” See Macy, supra, citing
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The EEOC noted that this is true
regardless of whether an employer takes an adverse action against an employee because
that employee makes the employer uncomfortable with his or her performance of gender,
or if the adverse actions are taken because the employer does not like that the employee is
not performing gender in a traditional manner.
This holding has important ramifications for all federal employees. The EEOC in Macy
has sent a clear message that discrimination based upon gender identity is discrimination
based upon sex, and is therefore unlawful under Title VII.
If you have any questions or concerns regarding your rights under Title VII, contact The
Jeffrey Law Group, PLLC, at 202-312-7100 or www.jeffreylawgroup.com.
The information contained in this article is of a general nature and is subject to change;
it is not meant to serve as legal advice in any particular situation. For specific legal
advice, the authors recommend you consult a licensed attorney who is knowledgeable
about the area of law in question.