Transgender Employees Protected Under Title VII

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In a landmark Equal Employment Opportunity Commission (EEOC) ruling (Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751, April 20, 2012) the EEOC ruled that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on ... sex’ and such discrimination ... violates Title VII.”

Even though a couple of federal courts have already taken this approach (and of course some states expressly protect transgender individuals), this ruling is significant. The decision is binding on all federal agencies and is entitled to significant deference by courts across the country in interpreting Title VII (not just those courts in circuits that have reached a similar conclusion). And as for the EEOC, the ruling means that the agency (and its 53 district offices) will now accept claims brought by transgender individuals.

The Basics of the Case

Mia Macy applied for a position with the Federal Bureau of Firearms, Tobacco, and Alcohol. When she applied, she had yet to undergo gender reassignment surgery. As the hiring process progressed, she was informed that the job was hers, pending completion of background review. Before the final offer was extended, Mia informed the agency (through the vendor running her background check) that she was undergoing reassignment surgery from male to female. Shortly thereafter she was informed that due to budget restraints the job was no longer open. She later learned that the job had been given to someone else. To learn more about the facts of this ruling (Mia Macy v. Eric Holder, Attorney General), click here.

What Now? Policy Updates and Discrimination and Harassment Training

In light of this ruling, it is important for employers to take a look at their EEO and harassment policies. If your policies do not include transgender status in the list of protected categories, you should consider updating them.

But beyond updating your policies, you must educate your workforce. If history has taught us anything, it’s that major shifts in employment law can drive a tidal wave of new litigation. Training doesn’t just help establish legal defenses in the event of a lawsuit—it can actually prevent major missteps from happening in the first place and materially improve your workplace culture.

This is one area in which tensions and sensitivities can run very high. Some employees may have religious or personal objections and feel that it’s important to voice them—even while they’re at work. On the flip side, employees who defend themselves or others can make offensive comments about a colleague’s religious or personal beliefs. Regardless of the side, it can add up to a serious problem if you don’t educate your employees about where the boundaries lie when it comes to acceptable behavior and speech.

Suffice it to say, this is one of those areas in which the rules are not obvious to everyone, and you may find yourself dealing with employees who feel deeply protective of their “right” to express opinions and engage in conduct that squarely violates your policies—and potentially the law. You should be looking for ways to get ahead of this issue rather than trying to catch up once problems arise.

Our Workplace Harassment training eLearning solution offers best-in-class training that addresses both sexual orientation and transgender harassment. We have been covering this critical culture and compliance topic for years—and the many nuances that it raises when it comes to harassment policies and education. Developed in close partnership with Littler, our online training brings critical concepts to life, helps learners understand the limits of expressing personal beliefs at work, and captures their attention and interest without making them feel attacked for their beliefs.


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