Federal workers are protected against gender identity discrimination

A 2012 Equal Employment Opportunity Commission decision declares unconditionally that employment discrimination based on gender identity is a violation of the federal prohibition against sex discrimination. The U.S. Office of Personnel Management defines “gender identity” as a person’s “internal sense of being male or female” regardless of that person’s biological gender.

The EEOC is the primary federal agency responsible for protecting against illegal employment discrimination that violates federal civil rights laws. The EEOC’s interpretations of these laws are binding not only on federal government employers, but also on state and local government employers and most private employers.

The Macy case

This important case was brought by Mia Macy, a transgender woman who claimed that a job offer from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, also called the ATF, was rescinded after the agency learned that she would be transitioning from a man to a woman.

The OPM defines a transgender person as someone whose gender identity conflicts with his or her physical gender at birth. Sometimes a transgender individual may transition to live as the gender with which he or she identifies, but transitioning means different things to different people. For example, it may involve only outward appearance for some, but hormonal treatment and surgical gender reassignment for others.

A federal employee in transition to another gender must be “treated with dignity and respect,” according to the OPM.

The EEOC found in Macy that an allegation of “discrimination based on gender identity, change of sex, and/or transgender status” states a sex discrimination claim under Title VII of the Civil Rights Act of 1964, the main federal civil rights in employment law. Specifically, the EEOC decision discusses in detail that sex discrimination reaches illegal employment practices based not only on “biological sex,” but also on “gender” that includes “cultural and social aspects associated with masculinity and femininity.”

The Macy opinion holds that discrimination “for failing to conform with gender-based expectations” runs afoul of Title VII and that this aspect of sex discrimination reaches negative employment actions by an employer because of discomfort with a sex transition, atypical gender expression in dress or demeanor, hostility toward a transgender person and other similar situations.

Harassment

Sex discrimination based on gender identity also includes sexual harassment in the workplace as exemplified by sexually suggestive comments and materials, offensive comments about someone’s body, sexual advances, and other insulting and distressing behavior that targets an employee’s gender identity or transgender status.

Complex law and procedures

The Macy case was complicated procedurally as are many federal employment discrimination complaints. Federal employees may have different legal remedies available to them depending on the circumstances through the EEOC, the Office of Special Counsel or OSC, the Merit Systems Protection Board or MSPB, the federal employee’s own employing agency and more. In addition, a lawsuit may be brought in federal court in some circumstances.

The procedural requirements and deadlines applicable in most of these avenues are strict and complicated. A federal employee who has suffered discrimination, harassment or retaliation at work because of his or her gender identity or transgender status should consult an experienced employment attorney as soon as possible to understand his or her legal rights and potential remedies, as well as to get advice about filing and notice deadlines.