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Transgender Discrimination is Gender Discrimination

Published:  October 7, 2014

In July of 2013, the decision in a landmark case, Mia M. Macy v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, established that discrimination based on an individual’s gender identity and sex stereotyping is sex discrimination prohibited under Title VII.  Now, over a year later, the EEOC has filed two new lawsuits alleging sex discrimination against transgender individuals.

In the landmark case, Mia M. Macy was denied a job as a ballistics technician by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“The Bureau”).  Macy discussed the job with the crime lab’s director, while presenting as a male, who assured Macy that she would be hired following a background check.  A few months later, Macy informed the Bureau that she was transitioning from male to female.  Subsequently, the Bureau informed Macy that the position was no longer available due to budget cuts.  In reality, the Bureau filled the position with another candidate.  Following the lawsuit, the Bureau was required to offer Macy the position, provide back pay and benefits, and cover her legal costs.  Additionally, the Bureau was required to implement anti-discrimination policies for that facility.

At the end of September, the Equal Employment Opportunity Commission (“EEOC”) again filed two lawsuits against employers for allegedly terminating employees after learning they were transgender.  While the facts of the case will obviously determine the outcome, the law is clear.  Taking adverse actions against an individual based on whether they conform to certain gendered expectations constitutes sex discrimination and is unlawful.

TAKE-AWAY

Therefore, to prevent similar claims against your company you should take the following steps.

  • Have an anti-discrimination policy in effect that not only discusses what   discrimination is and how it will be punished but also how employees may report discrimination.
  • Make sure supervisors are trained to recognize discrimination and how to respond to claims of discrimination.
  • Be aware of how employees choose to identify and use pronouns accordingly.
  • Ensure supervisors are trained to properly document all events so a clear record exists that will support legitimate, non-discriminatory reasons for making employment decisions.
  • Investigate every complaint of harassment or discrimination.  It is your responsibility as the employer to ensure a safe environment in which your employees work.
  • Make sure any hiring or termination decisions are based on appropriate factors, such as experience, ability, or performance.
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