Two Questions about EEOC Transgender Discrimination

Last week, the EEOC formally took the position that sexual discrimination under Title VII includes discrimination against on the basis of transgendered status.  In Mia Macy, the EEOC reversed course and expressly overturned its policy by deciding to investigate  an allegation of transgender-based discrimination.

The case involved Macy, who was a police detective in Phoenix and had applied for a job as a ballistics investigator with the Bureau of Alcohol, Tobacco, Firearms and Explosives in San Francisco.  Macy applied as a man and then had sex-change surgery while a background investigation was being conducted. Macy alleges that a job offer was revoked because the background investigator and the Bureau learned of the surgery.

In a sea change move, the EEOC adopted the position that "[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment 'related to the sex of the victim.'"  The EEOC reasoned:

This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion,  because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition  that “an employer may not take gender into account in making an employment decision."

Of course this is just the EEOC's position on the matter and the courts will have the ultimate say in whether the EEOC is right. But, looking at the EEOC's definition, I am left to wonder about what exactly is unlawful in its view.

I think that the phrase "because the person is transgender" fairly clearly applies in circumstances where an employer does not hire someone because the employer thinks that a man should not wear women's clothes or go by women's names. In that situation, the employer is engaging in a sort of sex-stereotyping.  Similarly if an employer does not hire someone because he thinks that a transgendered applicant is acting in a way inconsistent with the employer's notions of how men and women should act, this seems to be sex-stereotyping.

1. On the other hand, what if the employer discriminates against the transgender person because the employer thinks that a person's willing, surgical removal of a healthy organ reflects poorly on the employee's judgment? This is not a motivation based on a sex-stereotype that "men should act like men and women should act like women" but rather a motivation based on stereotypes about people who have medically unnecessary surgery and or people who modify their bodies.  Whether the employer's inference is well-founded is beyond the point.  Most types of "body-modification" involve non-transgender modifications (tattoos, piercings, breast augmentation, etc) and no one doubts that at times, employers discriminate on the basis of those modifications.  My point here is that if an employer is, as the EEOC says, "uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another",  there is an important distinction between whether that discrimination is based on notions of how men and women should behave or whether it is based on notions of what people should do to their bodies.  While the former indicates sex-stereotyping, the latter does not.


2. What if an employer fears that during the period following the surgery, the employee might have a lot of psychological, physiological or hormonal issues to overcome or get used to and thinks those issues might detract from the job? That's not discriminating on the basis of gender or sex-stereotypes; that's discriminating on the basis of a non-ADA-covered surgery and its effects. In this scenario, the employer isn't saying, "men shouldn't act this way", but is instead saying, "I don't think this employee will be able to focus as intently at work at a time in their life when they are going through a big change."