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Complaint based on Gender Identity

In a precedent-settling decision, the EEOC decided that a transgender woman who was initially offered employment as a male for a position with a contractor for the Bureau of Alcohol, Tobacco and Explosives, but the offer was subsequently withdrawn when it was learned that he was transitioning to female, is entitled to pursue her case. Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (4/2012). Macy was a male police detective when she applied for a position for which she was qualified at the bureau's Walnut Creek lab. The lab director told that she would be hired as a contractor if no problems arose during her background check. Macy later was informed by the contractor that due to federal budget restrictions, the position at Walnut Creek was no longer available.

Upon contacting an agency EEO counselor, Macy learned that the position at Walnut Creek had not been cut but rather someone else had been hired. The excuse given was that someone else's background investigation was farther along in the process. Macy then filed her formal EEO complaint with the Department of Justice which refused to process it under Title VII of the Civil Rights Act, as amended, and the EEOC Part 1614 regulations. Following a response from Macy's attorney, the department agreed to process her basis of sex discrimination under Title VII and the EEOC regulations but not her claim of "gender identity stereotyping." In order to confer jurisdiction on the EEOC to review her case, Macy withdrew her basis of sex discrimination and alleged failure to hire based on her gender identity, change of sex, and/or transgender status.

On appeal, the commission held that "claims of discrimination based on transgender status, also referred to as discrimination based on gender identity, are cognizable under Part 1614 of EEOC's federal sector EEO complaints process." The EEOC found that various formulations of the "claims are simply different way of stating the same claim of discrimination 'based on ... sex,' a claim cognizable under Title VII." It determined that the use of the term "gender" is broader than an individual's biological sex and also covers the "cultural and social aspects associated with masculinity and femininity," citing Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989), pointing out that the "courts have widely recognized the availability of the sex stereotyping theory as a valid method of establishing discrimination 'on the basis of sex ....'"

The case was remanded to the department for processing. It was noted that under the commission's enforcement guidance, a "joint employment" relationship may exist where both the agency and the "staffing firm" may be deemed employers. The commission made no determination as this time as to whether or not a joint employment relationship exists in the case.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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