May 1, 2012 –
Employee gender status protected, EEOC rules in landmark decision

In a landmark decision, the Equal Employment Opportunity Commission (EEOC) issued a ruling determining that discrimination against an employee or applicant based upon the individual’s gender status violates Title VII of the Civil Rights Act of 1964.

Specifically, on April 20, 2012, the EEOC determined that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ revocation of a job offer following the applicant’s disclosure of a lifestyle transition from a man to a woman is a cause of action under sex discrimination regulations.

What has changed

As a result of the EEOC’s action, transgendered individuals can now seek redress for perceived acts of discrimination based upon their transgendered status under Title VII, which is a protection not previously afforded in the past. In essence, the EEOC is not differentiating between traditional gender discrimination and that which may occur against someone who went through the sex change process. Instead, it is granting protection to transgendered individuals across the country in all 50 states.

This decision follows a series of court decisions indicating a shift in ideology on this topic. Recently, the Atlanta-based 11th Circuit ruled that an employee’s termination for her transgender status violated her civil rights under the United States Constitution’s Equal Protection Clause. In prior matters, the courts did not go so far as to extend the protection, but instead gradually reached the conclusion that Title VII’s protections expand and should not be narrowly applied.

What it means for employers

Employers should continue making employment decisions for legitimate and nondiscriminatory business purposes. The best practice for an employer is not to discriminate based upon gender, including transgendered individuals or those going through the change process.

What employers should do

Although the EEOC’s decision could be overruled by the United States Supreme Court, it is best that employers cautiously proceed. Employers must be aware that since the EEOC will now accept claims brought by transgender people, there is a greater possibility of future litigation. As a result, employers should review their employee handbooks to ensure they have the proper policies in place. Additionally, employers are encouraged to provide training to all supervisory and management personnel to assure compliance with this decision.