EEOC Decides Title VII Prohibits Gender Identity Discrimination

Contributed by Jon Hoag

The United States Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against transgender individuals is sex discrimination under Title VII. This is the first time for the EEOC to hold that Title VII covers discrimination based on gender identity and the decision could have a sweeping impact. EEOC decisions are not controlling on the courts, but the federal courts often give deference to EEOC interpretations and decisions.

The case only involved the procedural issue of whether Title VII extended to the complainant’s allegations of gender identity. The EEOC decided in the affirmative and remanded the matter to the federal agency to determine if the employer discriminated based on the complainant’s gender identity. According to the complainant, she was denied a position with the ATF because she disclosed that she was in the process of transitioning from a male to a female. The complainant states that shortly after this disclosure, she was told that the position could not be filled because of budget cuts. The complainant was concerned about the timing and inquired further about the position only to find that the position had not been eliminated and was actually filled by another candidate. 

The complainant filed a charge of discrimination based on sex and gender identity. In reaching its decision that gender identity is covered by Title VII, the EEOC relied on federal decisions that have addressed Title VII in the context of gender stereotypes and identity. While some federal courts have found Title VII applies to gender identity discrimination, it is anticipated that the EEOC decision will prompt direct and consistent application of Title VII to gender identity discrimination claims. Employers…you know what to do…stay tuned and stand ready to adjust your policies and procedures accordingly.