Wednesday, October 24, 2012

Only Manly Men and Little Women Need Apply.

In Garrison Keillor's Lake Wobegon, "all the women are strong, all the men are good looking, and all the children are above average."  Not a place where a charge of gender stereotyping is likely to occur.  But what about some workplaces in our country where those in power of hiring and firing might think all the women are to be "good looking," and all the men are to be "strong?"

I represent people who are in the process of changing gender in cases of discrimination based on gender stereotypes.  These clients are some of the most courageous persons I know as they seek to navigate not just the medical transition, but also the employment dynamics that emerge as the transgender employee makes his or her new identity known.  The social impact within a workplace is challenging for everyone:  a change of name, a change of dress, a change of toilet use, a change of grooming, a change of voice, a change of emotions, a host of changes, that are often first discovered by seeing the changes rather than discussing them proactively.

Companies wanting to avoid liability, or even more responsibly, seeking to be sensitive and supporting during this sometimes awkward shift in office dynamics, do not have to re-invent the wheel of company policies.  Guidelines are in place by progressive companies that can be used as models for both the company and the individual to make the “transition.”  See for example, the Ernst Young Transition Policy.

 An EEOC administrative decision in April, 2012 entitled Macy v. Bureau of Alcohol, Tobacco, Firearms & Explosive Agency provides an excellent overview of the applicable federal law protecting persons in gender transition.  More than that, it serves to clarify the essence of sex discrimination:  the perception of a person’s sexual characteristics in a way that leads to discrimination.  The gravamen of discrimination is not the biology of sex, but the stereotyped perceptions of what sexual identity is supposed to be.  

In Macy v Holder, Mia Macy was denied a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), after she informed her background investigator that she was in the process of transitioning from male to female.  She was informed shortly after that the position was no longer available due to budget cuts.  However, concern with the abrupt elimination of the position, she approached an EEO counselor to express her concerns.  Macy later learned that the position was not eliminated.  Instead, management had filled with another applicant.

Macy believed the offer of position was revoked because she disclosed her transgender identity during her background check.  She filed an EEO complaint against the ATF and alleged that she was discriminated against based on “sex, gender identity (transgender woman) and on the basis of sex stereotyping”.

The administrative EEO officers denied that Macy’s entire claims were under EEOC jurisdiction.  They tried to separate the claims: discrimination based on “sex”, which is processed by the EEOC and “sex stereotyping”, “gender transition/change of sex”, and “gender identity” which, they claimed, were not.     

The EEOC concluded that Title VII discrimination occurs when a person is treated differently because of stereotyped attitudes about how a person is to act as a male or as a female.  In reaching this decision, the EEOC relied primarily on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 239.  The Supreme Court held that Price Waterhouse managers acted in violation of Title VII when they denied promotion to a female accounting partner because she did apply the cosmetics or behavioral style they thought were “feminine.”   The EEOC, following Price Waterhouse, decided that the term “sex” describes not only “the biological differences between a men and women – and gender” but also the perceptions that a decision maker may have about how a person is to express his or her gender identity.

The decision is an excellent source of legal information for persons wanting to act within the law, and for those who have been wronged by those indifferent to Title VII’s protections. 

"If the pink slip doesn't fit, get redressed!"
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