EEOC Ruling: Title VII Prohibits Discrimination Based on Transgender Status

A Human Resource Bulletin

The United States Equal Employment Opportunity Commission (EEOC) recently ruled that Title VII prohibits discrimination against an individual because that person is transgender. A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) job applicant filed an EEO complaint with the ATF in which she claimed that she was denied employment because of her gender identity (a transgender woman). The ATF refused to consider the applicant’s claim as part of the EEOC’s federal public sector complaints process because the ATF believed that Title VII did not cover claims for discrimination based on gender identity stereotyping.

The applicant appealed the ATF’s determination to the EEOC. In response, the EEOC found 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 provision, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process.”

The EEOC’s decision is consistent with many federal courts, including the Sixth Circuit Court of Appeals (which includes Ohio), that have found that the sex discrimination prohibition in Title VII covers claims based on sexual stereotypes or gender identity stereotypes in addition to claims based solely on one’s sex. Also, many states (though not Ohio) and municipalities, including some in Ohio, specifically prohibit discrimination based on sexual stereotyping and/or gender identity.

The EEOC decision is important because even though this particular decision is only binding on federal agencies, the EEOC will likely take a similar position in its enforcement and litigation efforts involving other public and private employers. Thus, all employers subject to EEOC jurisdiction can expect the EEOC to accept and investigate charges filed on the basis of gender identity discrimination, including charges filed by transgender individuals. As a result, employers must be sure that their managers understand the prohibition of gender identity discrimination, and employers should consider whether their policies and practices are consistent with the EEOC’s position.