OK, How Many Of You Have Heard About The Macy’s Decision On Title VII?

Me neither until last night. So what is the decision and why is it important to the trans-community?

A few months ago I wrote about the EEOC ruling that extended Title VII to cover gender identity (Here and here), I found some background on how the EEOC came to its conclusion.

EEOC: Transgender Employees Protected Under Title VII 
Society for Human Resource Management
July 12, 2012

In a decision that could dramatically alter the legal landscape for transgender workers across the nation, the Equal Employment Opportunity Commission (EEOC) ruled April 20, 2012, that an employer who discriminates against an employee or applicant on the basis of the person’s gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964.

Title VII prohibits employment discrimination based on sex but does not expressly prohibit discrimination on the basis of transsexualism or gender identity. The EEOC’s ruling in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives stated that intentionally discriminating against an individual based on gender identity, change of sex and/or transgender status is a form of sex discrimination and, thus, is actionable under Title VII.

This ruling marks the first time that the EEOC has provided any guidance on the extent to which Title VII’s sex discrimination prohibition applies to transgender employees.
[…]
In December 2010, complainant Mia Macy, a transgender woman, applied for a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE). Macy presented her gender as male when she spoke to the ATFE director about the position.

The director tentatively offered her the position, pending satisfactory background check results, and instructed her to contact the outside contractor responsible for filling the position to inquire about the status of her background check.

Shortly thereafter, Macy advised the outside contractor that she was transitioning her gender expression to female, and as a result, the contractor informed the ATFE of Macy’s intended change in name and gender classification. Five days later, Macy received an e-mail from the ATFE notifying her that, due to federal budget cuts, the position was no longer available. Macy later learned that the position was not eliminated, and another candidate was hired. Macy filed a formal discrimination complaint with the ATFE in which she alleged discriminatory failure to hire based on sex, gender identity and sex stereotyping.

This has shades of the Diane Schroer case. Before she transitioned Diane had a job interview for a position as a senior terrorism research analyst at the Library of Congress and they offered “him” the job. Later when she informed them that she was transitioning, they withdrew the job offer. In that case the courts found that the Library of Congress had violated the Title VII of the Civil Rights Act and that decision was one of the cases that the EEOC based their ruling on the Macy case, which lead to the new EEOC policy.

So what does the EEOC ruling? An article in the Inside Counsel put it this way…

… As a result, the EEOC will now accept complaints of workplace discrimination from transgender employees. Although Macy involves alleged discrimination by a government agency, it is expected to impact private employers as well.
[…]
To Professor Art Leonard of the New York University Law School, the case means transgender people will be able to resolve their claims of discrimination through the EEOC’s administrative process as well as through the courts. “That the EEOC will receive complaints means a lot of people may get relief,” he says. For those cases that go to court, Leonard adds that while not binding, the EEOC’s interpretation of a statute usually is given significant weight by the federal courts.

“[Macy] is another step forward on the path to equal rights,” Leonard says.

I came across this video (Mara Keisling posted it on her Facebook page) of a Brown Bag Session, “What Does the Macy Decision Mean for Title VII?” It is rather long (it is great for listening to it over your lunch break). The part that I like is where one of the EEOC commissioners explains in an analogy how the courts and the EEOC reached their conclusion. In it she said something to the effect that “It is like a person who refused to hire a person not because they are Jewish, but rather because the person was Christian and changed to Judaism. It is still discrimination based on religion. The same is true for a transgender person changing their gender, it is still discrimination based on sex.” 

Here is another video “Brown Bag Session on Transgender Issues in the Workplace”, May 27, 2010 by the EEOC on transgender issues in the workplace, with a panel from the National Center for Transgender Equality and the National Gay and Lesbian Taskforce.


Video streaming by Ustream