EEOC Holds That Transgender Workers Are Protected by Title VII

On April 23, the EEOC held that transgender workers are protected by Title VII. The decision came in the case of Mia Macey, a transgender woman who alleges that she was denied a job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after she disclosed that she was in the process of transitioning from male to female. The opinion is the first from the EEOC to specifically address whether or not transgender persons are protected. The EEOC is responsible for interpreting and enforcing Title VII on a nationwide basis. Employers in every state, including those that do not have statutory protections for transgender employees, can now face federal claims of discrimination by transgendered persons.

In reaching its decision, the EEOC reasoned that Title VII prohibits not just sex discrimination (that is, discrimination on the basis of biological sex), but any discrimination on the basis of gender stereotyping. In other words, the law prohibits employers from taking adverse employment actions against an individual because he or she fails to conform to any gender-based expectations or norms. Discrimination against a male who is presenting as a female, the Commission concluded, is just one type of discrimination that falls under sex discrimination.

By taking the position that Title VII protects transgender employees, the Commission has handed advocates for transgender rights a breakthrough victory. For more than a decade, advocates for the lesbian, gay, bisexual, and transgender community have been working to pass the Employment Non-Discrimination Act (ENDA), which would add sexual orientation to the categories protected by Title VII. The EEOC’s ruling is likely to lend renewed momentum to the movement to pass the ENDA. This ruling is not binding upon court’s, and it remains to be seen whether they will agree with the EEOC’s position.

What Can Employers Do to Protect Themselves?

Employers in jurisdictions where gender identity was not already protected prior to the Macey ruling should consider revising company policies and training programs to address this new risk.

EEOC Issues Updated Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII

On April 25, the EEOC issued updated Enforcement Guidance concerning employers’ use of criminal arrest and conviction records when making hiring and other employment decisions. The EEOC Guidance states that, although Title VII does not bar the use of criminal background checks, employers may violate Title VII if (1) they intentionally discriminate, on the basis of race or national origin, against individuals with similar criminal histories or (2) their criminal background check policies have a disparate impact based on race or national origin, and they cannot demonstrate a “job-related business necessity” for those policies. While the Commission maintains that the updated guidance does not reflect a change in its policies, but merely updates and consolidates existing EEOC policies and guidance on the subject, the new guidance demonstrates the Commission’s new commitment to investigating and pursuing enforcement actions in criminal background check cases. The guidance also demonstrates the risks associated with the application of broad, across-the board policies concerning the use of criminal background checks.

The updated Guidance explicitly states that criminal record exclusions have a disparate impact on minorities, especially African American’s. The practical impact of the guidance is that employers, in defending their use of criminal history, may be limited to proving that their use of criminal background checks is “job related and consistent with business necessity.” The updated guidelines state that the use of arrest and conviction records is “job related and consistent with business necessity” in two broad situations: (1)when the employer validates its policy using the EEOC’s Uniform Guidelines on Employee Selection Procedures, and (2) when the employer develops a targeted screen that considers the nature of the crime, the time elapsed since the commission of the crime, and the nature of the job for which an individual is applying and, the employer conducts an individualized analysis of the information gathered. This will usually entail informing individual applicants that they are being excluded on the basis of their criminal record, provide those applicants with an opportunity to explain their criminal records, and consider the explanations provided when deciding whether the use of the applicants’ arrest and conviction records is, in fact, job related and consistent with business necessity.

What Can Employers Do to Protect Themselves?

Employers should conduct a thorough review of both their written policies concerning the use of criminal background checks in hiring and other employment decisions, as well as the practices used to implement those policies. As a part of that review, employers should consider the alternatives presented under the updated EEOC guidelines to demonstrate that their use of criminal background checks is consistent with Title VII. Those alternatives include taking steps to validate policies using the Uniform Guidelines on Employee Selection Procedures, and/or ensuring that the company’s policies and procedures regarding the use of criminal histories provide for a targeted screen that considers (1) the nature of the crime, (2) the time elapsed since the commission of the crime, and (3) the nature of the particular job for which an individual is applying.

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