During the background checking process, Ms. Macy advised that
she was transitioning from male to female. Five days later, Ms.
Macy received an email that the position was no longer available
due to budget cuts. Ms. Macy was subsequently told that the
position had not been eliminated due to budget cuts, but had
instead been given to someone else who was farther along in the
background investigation. Given the timing and inconsistent
information, Ms. Macy believed she was discriminated against due to
her gender identity and she filed an EEOC complaint thereafter.
The local EEOC office rejected her claim asserting that
"claims of gender identity stereotyping cannot be adjudicated
before the [EEOC]." After Ms. Macy appealed, the EEOC
ultimately agreed that gender identity discrimination was merely
another form of gender discrimination protected by Title VII.
Many commentators characterize this opinion as
"groundbreaking" and "explosive," but it
arguably just extends existing law and clearly directs field
offices to recognize and process claims arising from sexual
stereotyping, including transgender issues.
For over twenty years, the U.S. Supreme Court has recognized
that Title VII bars "not just discrimination because of
biological sex, but also gender stereotyping – failing to
act and appear according to expectations defined by gender."
The Court's 1998 Oncale concerned a worker
harassed for failing to conform to the masculine stereotype of an
offshore oil rig worker. In its
1989 Price Waterhouse decision, the Court addressed
an employer's failure to promote a female who was encouraged to
be less assertive and otherwise more feminine. Since Price
Waterhouse, courts have widely recognized sexual stereotyping
as a valid method for establishing discrimination "on the
basis of sex" in many scenarios where individuals fail to act
or appear in gender-conforming ways.
There are many cases recognizing discrimination and harassment
"on the basis of sex" where the allegations arise out of
failure to conform to sexual stereotypes. In fact, the EEOC
analogized gender-based discrimination as very similar in this
respect to religion-based discrimination, saying that while
discrimination because one is a Jew or Christian is a forbidden, so
is discrimination because one has converted from one faith to
another. By extension of the analogy, the EEOC said that
"converts" are protected in the gender arena, too.
With the EEOC's unequivocal guidance, it indeed gets better
for America's transgendered and those not conforming to gender
 Gay and Lesbian Alliance Against Defamation,
"GLAAD Media Reference Guide, 7th Ed." May
 US Equal Employment Opportunity Commission Decision,
Mia Macy v. Eric Holder, Attorney General, Department of Justice,
(Bureau of Alcohol, Tobacco, Firearms and Explosives), Agency,
Appeal No. 0120120821 (April 20, 2012).
 Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
 Price Waterhouse v, Hopkins, 490 U.S. 228
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").