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Transgenders now have job protection thanks to EEOC Opinion
Crystal A. Proxmire
Originally printed 4/26/2012 (Issue 2017 - Between The Lines News)
WASHINGTON D.C. -
A ruling by the Equal Employment Opportunity Commission means that transgender people who are discriminated against now may have recourse under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "based on race, color, religion, sex and national origin." The opinion issued April 23 in the case of Macy v. Holder is the first time the EEOC has ruled on whether discrimination against transgender people is discrimination based on sex. And now, officially, it is.
Courts at various levels have come to a similar conclusion over the past few years, but the EEOC sets the rules that the entire country must follow, including the 34 states that currently don't have employment protections specifically for transgender people.
Equality activists in Michigan are pleased with the decision. "This ruling is a major advancement in transgender rights that will be a significant tool to fight discrimination," said Rachel Crandall, co-founder of Transgender Michigan. "It will also help us to advocate for still needed protections in the Elliot Larsen and other Michigan ordinances."
In Michigan, while transgender individuals are now more protected under the EEOC ruling, gay, lesbian and bisexual people can still be fired if their employer does not want to have gay people working for them, and transgender people can still be fired for reasons not related to sex discrimination. Because Michigan is an "at will" state, employers can fire employees without reason - except for reasons that are prohibited by the Federal Civil Rights Act.
Recently, Michigan Sen. Rebekah Warren (D-Ann Arbor) announced legislation that would amend the Elliott Larsen Act to include sexual orientation and gender identity. The fight for employment equality in Michigan continues, with the "Don't Change Yourself, Change the Law" campaign helping to raise awareness of this issue. That movement can be found online at http://dontchangeyourself.com/i-can-be-fired/.
ACLU LGBT Project Attorney Jay Kaplan, speaking about the EEOC ruling said, "Courts have been recognizing that discrimination in employment against transgender persons may constitute sex discrimination, as a result of gender stereotyping by the employer (you don't look or act the way a biologically born female or male should). This is particularly important for transgender persons who live in states like Michigan, where our state civil rights laws do not have specific protections against discrimination based on gender identity and gender expression.
"The EEOC's decision sends a strong message that transgender persons who have been victims of employment discrimination may have viable claims regarding sex discrimination. The EEOC decision is also consistent with previous Court of Appeals decisions in the 6th Circuit (which covers Michigan) holding that transgender discrimination may constitute sex discrimination in violation of Title VII. We still need federal and state civil rights laws that include the categories of gender identity and expression, but this EEOC decision will provide a remedy for many transgender persons who have been denied employment opportunities or have been terminated from their jobs due to gender discrimination."
Denise Brogan-Kator of Equality Michigan applauded the ruling, but also added her concerns. "There are some important limitations on the availability of this forum, including that the only EEOC office in Michigan is in downtown Detroit and charges must be filed in person; a charge of discrimination must be filed with 6 months after the act of discrimination; and Title VII covers only employers with at least 15 employees," Kator said. "Finally, the EEOC's jurisdiction extends only to employment discrimination, it does not provide any protections against discrimination in housing, education, and places of public accommodation. This is the primary reason why Michigan citizens need to continue to push to amend our state civil rights act to include sexual orientation and gender identity and expression as protected characteristics."
The case that brought about the ruling involved Mia Macy, a transgender woman who allegedly was denied a job as a ballistics technician at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives laboratory in Walnut Creek, California, after she announced she was transitioning from male to female.
According to the Transgender Law Center, who helped bring the Macy case before the Commission, "Ms. Macy, a veteran and former police detective, initially applied for the position as male and was told that she virtually was guaranteed the job. Ms. Macy was exceptionally qualified for the position, having a military and law enforcement background and being one of the few people in the country who had already been trained on ATF's ballistics computer system. After disclosing her gender transition mid-way through the hiring process, Ms. Macy was told that funding for that position had been suddenly cut. She later learned that someone else had been hired for the job."
Macy told the Transgender Law Center, "As a veteran and a police officer, I've worked my whole career to uphold the values of fairness and equality. Although the discrimination I experienced was painful both personally and financially, and led to the loss of my family's home to foreclosure, I'm proud to be a part of this groundbreaking decision confirming that our nation's employment discrimination laws protect all Americans, including transgender people. I'm grateful for the help of Transgender Law Center, which believed in me from the start and helped guide me through this process. No one should be denied a job just for being who they are."
Kaplan cautioned that not all situations where a transgender person is fired or denied employment are instances of discrimination based on gender stereotyping, which is a specific requirement for a claim. He said those who feel they have been discriminated against should contact the LGBT Project at the ACLU of Michigan through their website http://www.aclumich.org/courts/lgbt-project. "Depending on the facts and circumstances, they may have viable complaint to file with the EEOC regarding employment discrimination. I think though it helps to talk them through the situation and figure if this would constitute a sex discrimination claim. Not all cases of transgender discrimination are based on gender stereotyping."
To learn more about this case, visit the Transgender Law Center website at http://transgenderlawcenter.org/cms/blogs/552-24#ruling. For more on Transgender Michigan go to http://www.transgendermichigan.org/. For more on the EEOC visit http://www.eeoc.gov/.
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