NEWS: Employment Law News: EEOC Rules on Discrimination Based on Transgender Status

By Rudman Winchell Attorney

By: Rudman Winchell Attorney Anne-Marie Storey

In a recent decision, the EEOC has held that discrimination based on gender identity, change of sex and/or transgender status constitutes sex discrimination in violation of Title VII.

In the case, the employee was a female who worked as a police detective in Arizona. She was living as a male. After she applied for a position in California with the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency’s crime lab, she was told she had the job pending a background check (her interview had been by phone). After that, she emailed the prospective employer to tell them she was transitioning from male to female. Shortly thereafter, she was told the position she was waiting for was no longer available due to budget cuts. It turned out another candidate had actually been hired for the job.

The applicant filed an EEO complaint alleging sex discrimination based on “gender identity” and “sex stereotyping”. One of the primary issues became whether the claim for gender identity discrimination was a separate claim or simply part of the sex discrimination claim.

Ultimately, the EEOC ruled that it had jurisdiction over a separate and distinct gender identity claims as well as the sex discrimination claim. In doing so, the EEOC established 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.”

The Commission clarified that 1) the definition of sex includes both biological differences and gender, which includes “cultural and social aspects associated with masculinity and femininity” and 2) “gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”

This decision applies specifically to federal employers. However, Maine has often followed federal guidance in interpreting its state anti-discrimination statutes and so it is certainly conceivable that the state would interpret our statute similarly.

In fact, the MHRA already arguably comes to the same conclusion, as it prohibits discrimination based on “sexual orientation”, which is defined as a person’s actual or perceived heterosexuality, bisexuality, homosexuality, gender identity, or gender expression (“gender identity” is defined as an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with that individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous, while “gender expression” is defined as the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with that individual’s assigned sex at birth).

This case is a good reminder to employers to be aware of and take effective steps to prevent discrimination and harassment based on all protected categories.

If you have any questions about this case or its application, please do not hesitate to contact a member of Rudman Winchell’s Employment Team.

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