Transgendered Employees Are Protected Against Discrimination

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The EEOC, in a landmark decision, has declared that Title VII protects transgendered employees under its prohibition against sex discrimination. This ruling isn't too surprising considering that gender stereotyping has long been considered sex discrimination. Here's what EEOC said:

That Title VII’s prohibition on sex discrimination proscribes genderdiscrimination, and not just discrimination on the basis of biologicalsex, is important. If Title VII proscribed only discrimination on thebasis of biological sex, the only prohibited gender-based disparatetreatment would be when an employer prefers a man over a woman, or viceversa. But the statute’s protections sweep far broader than that,in part because the term “gender” encompasses not only a person’sbiological sex but also the cultural and social aspects associated withmasculinity and femininity. 

EEOC went on to say that sexual stereotyping isn't the only way that transgendered discrimination can be illegal:

Although most courts have found protection for transgender peopleunder Title VII under a theory of gender stereotyping, evidence ofgender stereotyping is simply one means of proving sex discrimination.Title VII prohibits discrimination based on sex whether motivated byhostility,11 by a desire to protect people of a certain gender,12 byassumptions that disadvantage men,13 by gender stereotypes,14 or bythe desire to accommodate other people’s prejudices or discomfort.15While evidence that an employer has acted based on stereotypes abouthow men or women should act is certainly one means of demonstratingdisparate treatment based on sex, “sex stereotyping” is not itselfan independent cause of action.

EEOC went on to give examples of how a transgendered individual might prove sex discrimination:

For example, Complainant could establish a case of sex discriminationunder a theory of gender stereotyping by showing that she did not getthe job as an NIBIN ballistics technician at Walnut Creek because theemployer believed that biological men should consistently present asmen and wear male clothing.Alternatively, if Complainant can prove that the reason that she didnot get the job at Walnut Creek is that the Director was willing to hireher when he thought she was a man, but was not willing to hire her oncehe found out that she was now a woman—she will have proven that theDirector discriminated on the basis of sex. Under this theory, therewould actually be no need, for purposes of establishing coverage underTitle VII, for Complainant to compile any evidence that the Directorwas engaging in gender stereotyping.

Here's the part I found the most interesting, and I thought the analysis was spot-on. EEOC compared discrimination against transgendered employees to religious discrimination against a convert:

Imagine that an employee is fired because she converts from Christianityto Judaism. Imagine too that her employer testifies that he harbors nobias toward either Christians or Jews but only ‘converts.’ That wouldbe a clear case of discrimination ‘because of religion.’ No courtwould take seriously the notion that ‘converts’ are not covered bythe statute. Discrimination “because of religion” easily encompassesdiscrimination because of a change of religion.

Applying Title VII in this manner does not create a new “class” ofpeople covered under Title VII—for example, the “class” of peoplewho have converted from Islam to Christianity or from Christianityto Judaism. Rather, it would simply be the result of applying theplain language of a statute prohibiting discrimination on the basisof religion to practical situations in which such characteristics areunlawfully taken into account.

What does this all mean? How does it affect the rights of transgendered employees? EEOC is not a court and it isn't Congress, so it can't make law. The opinion gives us a glimpse as to how EEOC will view charges of discrimination brought by transgendered employees. That means transgendered employees will have an easier time convincing EEOC to find "cause" for their charges of discrimination. But that doesn't mean they necessarily win.

Once EEOC finds cause (or that they're unable to determine whether or not cause exists), the employee will still have to sue if the employer doesn't settle. That means the courts could decide differently than EEOC. It happens all the time that courts disagree with EEOC's world view.

This decision is a major step in the right direction. The only way to be sure of an outcome will be if Congress decides to clarify Title VII one way or the other, or if the Supreme Court rules on this issue. In the meantime, for now we can assume that transgendered employees have some rights under Title VII.