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Birmingham Bar Association Bulletin Fall 2015

Employment Law Sandra B. Reiss, The Reiss Law Firm LLC (April 20, 2012), the EEOC recognized, for the first time, that discrimination against transgender employees was a form of sex discrimination under the Civil Rights Act of 1964. In short, Mia Macy, a police detective in Phoenix, Arizona, was promised a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) upon completion of a background check. During this time, Macy was transitioning to a female and once the ATF learned about her transition, told Macy that “due to a federal budget reduction, the position . . . was no longer available.” Macy later found out the job had been filled by another candidate. Macy filed an EEO claim with the ATF and checked off “sex” and the box “female” and then typed “gender identity” and “sex stereotyping” as the basis for her complaint. The EEOC, in responding to her Complaint, alleged that while her sex discrimination charge could proceed, it did not recognize claims base on gender identity stereotyping. Relying heavily on the language in Glenn, supra, the EEOC, on appeal, reversed its characterization of Macy’s claims stating: that the Agency mistakenly separated Complainant’s complaint into separate claims: one described as discrimination based on “sex”(which the Agency accepted for processing under Title VII) and others that were alternatively described by Complainant as “sex stereotyping,” “gender transition/change of sex,” and “gender identity” . . . That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when the employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity. The Agency appeals decision concluded “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.” One of the first transgender cases prosecuted by the EEOC in the private sector occurred within the Eleventh Circuit. In 2014, the EEOC sued on behalf of the United States in the case of EEOC v. Lakeland Eye Clinic, P.A., (M.D. Fla. 2014) alleging that the defendant discriminated against an employee after firing her when she began to present as a woman. The case settled on April 9, 2015 for $150,000 dollars.12 As of this writing, there have been, or are, cases pending alleging transgender discrimination in federal courts in the following Circuits: Second (New York), Third (Pennsylvania), Fourth (Maryland, North Carolina), Fifth (Louisiana, Texas), Sixth (Michigan, Ohio), Eighth (Minnesota), Ninth (California), Tenth (Kansas) and Eleventh (Alabama, Florida and Georgia) and the District of Columbia.13 States and municipalities are also instituting laws to protect transgender employees. In 1993, Minnesota became the first state to pass a law protecting the employment rights of transgender workers.14 As of December 2014, eighteen States (CA, CO, CT, DE, HI, IA, IL, MA, ME MN, NC,NJ, NM, NV, OR, RI, VT and WA) as well as the District of Columbia and Puerto Rico have laws protecting gender identity in the workplace.15 As of the same time, over 140 municipalities had passed laws protecting transgender employees. 16 At this time, Alabama has no state or local laws protecting transgender employees, but federal and constitutional mandates apply to Alabama entities. III. OSHA Issues Workplace Guidelines For Employers With Transgender Employees Perhaps the most pressing question for both employers and employees is “what about the workplace rest room?” In fact, in Glenn, supra, the appellant raised this issue on appeal. Glenn, 663 F.3d at 1321. In June 2015, the Occupational Safety and Health Administration (“OSHA”) published “A Guide to Rest Room Access for Transgender Workers.”17 When the guidelines were released, Dr. David Michaels, Assistant Secretary of Labor for OSHA, stated that the “core principle is that all employees, including transgender employees, should have access to rest rooms that correspond to their gender identity.” In practice, this means that an employee who identifies as a male should be permitted to use the men’s rest room. Specifically, the Guidance reads: Gender identity is an intrinsic part of each person’s identity and everyday life. Accordingly, authorities on gender issues counsel that it is essential for employees to be able Continued on page 36 22 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2015
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