What Does the Macy Decision Mean for Title VII?

Are lesbian, gay, bisexual, and transgender employees protected from discrimination?

(September 10, 2012)

You are updating your company’s employment discrimination training for managers and supervisors. Because lesbian, gay, bisex

ual, and transgendered (LGBT) individuals are not a named “protected group” under federal law, you are wondering whether your training module should state that harassment and bias directed at them is strictly prohibited. What should you do?

Whether or not LGBT is a “protected group,” your training module should make clear that harassment and discrimination directed at such individuals is prohibited. The Equal Employment Opportunity Commission (EEOC) interprets Title VII’s prohibition against discrimination “based on sex” to include protection that may extend to LGBT individuals. Some state laws also specifically protect individuals from discrimination based on sexual orientation. Moreover, regardless of its lawfulness, harassment and bias are never good for the workplace.

At a Brown Bag Session available on video, the EEOC presented a discussion of Macy v. Holder, a commission decision setting forth the EEOC’s position that Title VII protects transgender employees and applicants from discrimination in employment. The commission wrote that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.”

EEOC Commissioner Chai Feldblum explained that a Title VII claim for discrimination because a person is transgender can be brought based on gender stereotyping or because “gender was on the brain” and clearly taken into account. When gender is taken into account, Title VII is violated, she stressed.

Acting Assistant General Counsel Daniel Vail also noted that four or five circuit courts of appeals have explicitly recognized that transgender persons can bring a Title VII claim, albeit not in the same way as stated by the EEOC in Macy. Vail also noted that the EEOC has formed a LGBT work group to advise the EEOC general counsel on how to make sure that LGBT individuals are not being carved out and receiving less protection under statutes enforced by the EEOC. The work group also is looking at federal districts and circuits around the country to identify areas where they may be able to bring some cases applying Macy, or theories of “sex-plus” or associational discrimination.

Whether or not the federal courts ultimately agree with the EEOC’s interpretation of Title VII protections, the agency has amplified its efforts to protect LGBT individuals. Therefore, the best course of action is to make sure that your workforce knows that discrimination and harassment targeted to employees because they are lesbian, gay, bisexual, or transgender is strictly prohibited.

Source: EEOC Brown Bag Session: What Does the Macy Decision Mean for Title VII?, June 15, 2012,http://www.eeoc.gov/federal/training/brown_bag_macy.cfm
; Macy v. Holder, Appeal No. 0120120821, April 20, 2012.

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