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Employment Non-Discrimination Act

The Employment Non-Discrimination Act (ENDA) is a bill pending before Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.  Religious organizations are provided an exception from this protection, similar to that found in Title VII of the Civil Rights Act of 1964.  Non-profit membership-only clubs, except labor unions, are also exempt.  ENDA has been introduced to every Congress except the 109th since 1994 without passage.

ENDA defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth”.  Further, sexual orientation is defined under ENDA to include homosexuality, heterosexuality and bisexuality.

In a survey of transgender and gender non-conforming people conducted by the National Gay and Lesbian Task Force found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.  In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.

Generally, such cases of employment discrimination based on gender identity are rarely if ever reported to the United States Equal Employment Opportunity Commission (EEOC).  However, one such reported case may have widespread ramifications.

In Mia Macy v. Eric Holder, the complainant, a transgender woman, was employed as a police detective in Phoenix, Arizona. In December 2010, she decided to relocate to San Francisco for family reasons.  At the time she originally filed her Charge of Discrimination, she had not made the transition to being a female.

Complainant’s supervisor in Phoenix told her that there was an opening with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) at its Walnut Creek crime laboratory for which she was qualified.  She is trained and certified as a National Integrated Ballistic Information Network (NIBIN) operator and a BrassTrax Ballistic investigator.  On March 29, 2011, she informed Aspen DC who was performing the background check that she was transitioning from male to female and she requested that Aspen inform the Director of the Walnut Creek laboratory of this change.  On April 3, 2011, Aspen informed her that the ATF was informed of her change in name and gender.  On April 8, 2011, she received an email from Aspen’s Director of Operations stating that, due to federal budgetary reductions, the position at Walnut Creek was no longer available.

On June 13, 2011, she filed a Charge of Discrimination with the EEOC Agency and checked off ‘sex’ and the box “female,” then typed in “gender identity” and “sex Stereotyping” as the basis for her complaint.  On October 26, 2011, the EEOC Agency sent a Letter of Acceptance but indicated that “since claims of discrimination on the basis of gender identity stereotyping cannot be adjudicated before the EEOC Agency, your claims will be processed according to the Department of Justice policy.”  The letter provided that if she did not agree with how the EEOC Agency handled her claims, she should contact the EEOC within 15 days.  On November 8, 2011, she disagreed through her attorney with the handling of her claims by the EEOC Agency.  On December 6, 2011, she appealed the EEOC Agency’s handling of her claims to the EEOC’S Office of Field Operations the appeal was then assigned to the Commission.

The Commission found that the EEOC Agency mistakenly separated her complaints of discrimination: one described as discrimination based on “sex” which the EEOC Agency accepted for processing under Title VII and the others that were alternatively described by her as “sex stereotyping,” “gender transition/change of sex’” and “gender identity.”  Each of the formulations of her claims of discrimination are “based on sex,” a claim cognizable under Title VII.

Despite these legislative initiatives discrimination in hiring and employment on the basis of sexual orientation or gender identity problems still persist.  Remember, although under Title VII claims of sexual orientation or gender identity are not cognizable you can still assert cognizable claims for “sex” discrimination.  To file a “sex” discrimination complaint with the EEOC, please call 800-669-4000.