By Anthony Hohn

In a recent decision, the Equal Employment Opportunity Commission held that discrimination based on gender identity, change of sex, and/or transgender status constitutes prohibited sex-based discrimination under Title VII of the Civil Rights Act of 1964. In Macy v. Holder, the Bureau of Alcohol, Tobacco, Firearms and Explosives revoked a job offer previously given to Mia Macy after the agency learned Macy was “transitioning” from male to female. Macy filed a formal EEO Complaint citing discrimination based on sex, and specifically asserted “gender identity” and “sex stereotyping” as the grounds for her complaint. When the Department of Justice declined to pursue Macy’s gender identity discrimination claim, Macy appealed to the EEOC. The Commission held that claims of discrimination based on transgender status, i.e. gender identity, are cognizable under Title VII’s prohibition on sex discrimination.

While the EEOC’s decision is only binding on federal employers, it could have significant repercussions for all employers. First, the Commission will likely follow the ruling when deciding charges of discrimination against private employers. Further, courts may adopt, or at least consider, the Commission’s ruling in discrimination cases against private employers, which could result in an expansion of Title VII’s protections. Accordingly, all employers should be prepared for claims of discrimination based on transgender status