Reversing its own precedent, the Equal Employment Opportunity Commission (EEOC) found on Monday that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII of the Civil Rights Act of 1964.

In Macy v. Holder, the complainant was a transgender woman who, while still known as a male, applied for and allegedly was qualified for an open position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Presenting as a man, she discussed the position with the director of the crime laboratory where the job was located. The director offered her the position, assuming there were no problems with her background check. When she checked the status of the position one month later (still presenting as a man), the director again asserted that the job was hers if there were no issues with the background check.

A few months later, the complainant e-mailed the staffing firm responsible for filling the position that she was in the process of transitioning from male to female and requested that the firm tell the ATF. The staffing firm subsequently advised her that it had told the director of the crime laboratory of her change in name and gender. Five days later, she received an e-mail from the staffing firm stating that, due to federal budget restrictions, the position was no longer available. However, when she followed up, the complainant learned that the position had not, in fact, been eliminated, and that someone else had been hired for the position.

As a result, the complainant filed a complaint alleging that she was discriminated against on the basis of “sex, gender identity (transgender woman) and on the basis of sex stereotyping.” The ATF, however, contended that claims of discrimination on the basis of gender identity could not be adjudicated through Title VII and the EEOC.

The EEOC unanimously agreed with the complainant that her entire claim is subject to Title VII’s ban on discrimination on the basis of sex. The EEOC explained that, under Title VII, the term “sex” encompasses both the biological differences between men and women, and “gender,” a term that includes not only biological sex, but also the cultural and social aspects associated with masculinity and femininity. Thus, the EEOC applied several federal circuit and district court decisions and concluded that claims for sex discrimination include discrimination based on the failure to conform to gender-based stereotypes, discrimination against a person because he or she is transgender, and discrimination based on the transition of an individual from one sex to another.

Employers should review their policies and procedures to ensure compliance with the EEOC’s new application of Title VII. If you have questions on the decision or its implications for your business, please contact Louis L. Chodoff at 856.761.3436 or chodoffl@ballardspahr.com, Erin K. Clarke at 215.864.8318 or clarkee@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.


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