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DISABILITY DISCRIMINATION — 8/02/07

Transgender bias addressed in EEOC informal discussion letter

The unsettled state of the law as to whether transgendered workers are protected under Title VII was highlighted in an informal discussion letter released by the EEOC on July 16, 2007. The letter responded to an inquiry from a member of the public as to whether transgendered employees are covered by Title VII.

"Historically, courts and the EEOC have held that Title VII does not prohibit discrimination against an individual because of transgendered status," EEOC Assistant Legal Counsel, Dianna B. Johnston, wrote in a letter dated May 25, 2007. She cited as examples, Ulane v Eastern Air Lines, Inc, 35 EPD ¶34,675 (7thCir 1984) and EEOC Dec No 75-030, CCH EEOC Decisions ¶6499 (1974).

However, Johnston pointed out that in recent years, some courts have concluded that discrimination against a transgendered person "may constitute unlawful gender stereotyping in violation of Title VII’s prohibition against sex discrimination." In support, of her observation, she cited, among others, Smith v City of Salem, 87 EPD ¶42,173 (6thCir 2004); Mitchell v Axcan Scandipharm Inc, 87 EPD ¶42,277 (WDPa 2006) and Schroer v Billington, 87 EPD ¶42,334 (DDC 2006).

Nonetheless, other courts continue to adhere to the historical view that Title VII is not violated by discrimination based on transgendered status, Johnston noted, citing Etsitty v Utah Transit Auth, 86 EPD ¶42,028 (DUtah 2005) and Oiler v Winn-Dixie La, Inc, 83 EPD ¶41,258 (EDLa 2002). Accordingly, the issue of whether discrimination against a transgendered person may be unlawful sex bias under Title VII "is a factual question that cannot be determined outside the context of specific charges of discrimination and a complete investigation," Johnston wrote.

The EEOC's letter concerning transgender discrimination under Title VII is an informal discussion of the issue and does not constitute an official opinion of the EEOC. The full text of the letter is posted on the EEOC's website.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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