Transgender Employment Discriminaiton

This week, the EEOC affirmatively stated that an employer who discriminates against an employee on the basis of the person’s gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act. The decision was issued in response to an EEOC complaint filed by Mia Macy against the Bureau of Alcohol Tobacco Firearms and Explosives (ATF).

Macy alleged that the ATF rescinded an employment offer, made while she was presenting as a male, after learning Macy planned to transition to female. The ATF informed her that the position had been eliminated; however, Macy learned that the job had been filled by another candidate. After unsuccessfully pursuing her claim with the ATF’s internal EEO compliance office, she appealed to the EEOC in late 2011 to determine whether Title VII applied to transgender employment discrimination. The EEOC’s decision, which was released on April 23, reads in part as follows:

''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition....''

The EEOC applies to employers in industries affecting commerce. Generally, an employer is subject to Title VII if the employer has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

The Maryland Human Rights Act (which similarly affects employers with 15 or more employees) has not yet added gender identity to its list of protected classes, although it does protect employees based on sexual orientation. However, several local jurisdictions have modified their laws to specifically protect transgender individuals from employment discrimination, including: Baltimore City, Baltimore County, Howard County and Montgomery County.

Employers in the above referenced jurisdictions are covered by the local employment discrimination laws as follows:

• Montgomery County – if the employer has one or more employees (either for compensation or as a volunteer);
• Baltimore County– if the employer has one or more employees for each work day in at least 20 calendar weeks in the current or preceding calendar year;
• Howard County– if the employer has five or more employees for each work day in at least 20 calendar weeks in the current or preceding calendar year; and
• Baltimore City– if the employer has 15 or more employees for at least 15 days during the preceding 12 full months.