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Transgender workers and discrimination

The Equal Employment Opportunity Commission (EEOC) issued a potentially groundbreaking decision that grants transgendered workers the right to bring a federal lawsuit based on gender bias. Massachusetts law already prohibits employment discrimination based on sexual orientation.

When Mia Macy interviewed for a job with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), she was a male with prior experience as a police detective.  She received good feedback during the hiring process until she later announced her plan to transition from male to female.  She was told that the position was eliminated for budgetary reasons, but the job was filled by someone else.  
Macy complained that the ATF engaged in discriminatory sex stereotyping.  On appeal, the EEOC reversed its earlier finding against Macy, and ruled that transgender claims are covered by laws against sex discrimination.  The EEOC reasoned that if the applicable law prevented “only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa.  But the statute’s protections sweep far broader than that, in part because ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.'”  
This ruling could be expanded to allow gay workers to sue for employment discrimination under federal law.  For example, if an employer fires a gay male employee because it perceives him as effeminate, or suspends a gay female employee because it perceives her as too masculine, the EEOC’s decision would support their claims for sex discrimination.  Discrimination, whether against gay or straight employees, is often based on gender stereotypes.  I see cases where the female employee is told her “soft skills” are not good enough. This can be code for saying she is too aggressive while rewarding this kind of behavior in male employees.  
Legislation that would bar employment discrimination based on sexual orientation or gender identity is still pending in Congress.  
Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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