Tuesday, September 25, 2007

EEOC releases informal discussion of transgender discrimination under Title VII

The EEOC has released a letter it recently issued in response to a public inquiry about Title VII coverage of transgender workers.

The letter notes that it does not constitute an official opinion of the Commission. However, it does clearly indicate that the Commission views some situations as violative of Title VII. This is a sea-change in relation to prior Commission positions on the subject. For example, in its 1994 opinion in Bell v. Shalala (1994 EEOPUB LEXIS 1202) it noted that "The Commission has repeatedly held that transsexualism is not recognized as a protected basis under Title VII." Now, it's a "factual question." The full letter is below.


The U.S. Equal Employment Opportunity Commission
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EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


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Title VII: Sex Discrimination/Coverage of Transgendered

May 25, 2007

Dear :

This is in response to your letter of May 2, 2007, regarding the coverage of transgendered workers under Title VII of the Civil Rights Act of 1964, which, among other things, prohibits sex-based employment discrimination.

Historically, courts and the EEOC have held that Title VII does not prohibit discrimination against an individual because of transgendered status. See, e.g., Ulane v. Eastern Air Lines, Inc., 742 F.2d 1081 (7th Cir. 1984); EEOC Dec. 75-030, ¶ 6499 (CCH) (1974). In the past few years, however, some courts have determined that discrimination against a transgendered individual may constitute unlawful gender stereotyping in violation of Title VII’s prohibition against sex discrimination. See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Mitchell v. Axcan Scandipharm Inc., 2006 WL 456173 (W.D. Pa. Feb. 21, 2006); Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); cf. Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) (disagreeing with Ulane and holding that discrimination based on sexual identity may be discrimination based on sex). Other courts, however, have adhered to the view that discrimination based on transgendered status does not violate Title VII. See Etsitty v. Utah Transit Auth., 2005 WL 1505610 (D. Utah June 24, 2005); Oiler v. Winn-Dixie La., Inc., 2002 WL 31098541 (E.D. La. Sept. 16, 2002). Whether discrimination against a transgendered individual may constitute discrimination based on sex in violation of Title VII is a factual question that cannot be determined outside the context of specific charges of discrimination and a complete investigation.

We hope this information has been helpful. Please note that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of section 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b).

Sincerely,

– s –
Dianna B. Johnston
Assistant Legal Counsel


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This page was last modified on July 16, 2007.

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