Victor Victoria...Victorious?
April 24, 2012 1:54 PM Subscribe
"[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition"On April 20, the US Equal Employment Opportunity Commission (EEOC) issued a unanimous ruling for the plaintiffs in a lawsuit brought up by the Transgender Law Center on behalf of Mia Macy, who claimed she was denied a job as at the Bureau of Alcohol, Tobacco, Firearms and Explosives after she announced she was transitioning from male to female. The decision allows for people who have been fired or prohibited from applying for a job based on their gender identity to bring federal lawsuits against their employers under Title VII of the Civil Rights Act of 1964.
The culmination of several civil lawsuits stretching back to 1974, the ruling is expected to be "a real sea change" for protecting transgender employees against workplace discrimination. However, supporters say that this is just the beginning. Apart from the inevitable Supreme Court challenge, where the precedent from Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, Inc. at least seems to be on the side of continued protections, there are 34 states where it is legal to fire someone solely for being transgender. In addition, the proposed Employment Non-Discrimination Act (ENDA), first introduced in 1994 and sponsored in all but one session since then, has yet to be passed despite having the support of 73% of Americans as of 2011. The current incarnation of ENDA, sponsored by Rep. Barney Frank and Sen. Jeff Merkley and supported by the Obama Administration, has 161 cosponsors in the House and 41 in the Senate, but has not yet passed out of committee.
Is this subject to appeal, or is the EEOC's ruling final?
posted by Holy Zarquon's Singing Fish at 1:58 PM on April 24, 2012
posted by Holy Zarquon's Singing Fish at 1:58 PM on April 24, 2012
Yet another reason why I <3 the Transgender Law Center.
posted by gingerbeer at 1:59 PM on April 24, 2012 [5 favorites]
posted by gingerbeer at 1:59 PM on April 24, 2012 [5 favorites]
Wow, that's cool. Rare these days that the government gets anything right.
posted by Admiral Haddock at 2:00 PM on April 24, 2012
posted by Admiral Haddock at 2:00 PM on April 24, 2012
I believe that ENDA would have passed years ago if gender identity language was taken out, as that has been my observation with the NYS legislature.
But I am pleased as punch LGB advocates are not willing to drop the T for some inferior protections.
posted by munchingzombie at 2:02 PM on April 24, 2012 [3 favorites]
But I am pleased as punch LGB advocates are not willing to drop the T for some inferior protections.
posted by munchingzombie at 2:02 PM on April 24, 2012 [3 favorites]
Because I am an idiot, I'm surprised this wasn't already the case.
posted by shakespeherian at 2:03 PM on April 24, 2012
posted by shakespeherian at 2:03 PM on April 24, 2012
You aren't an idiot, unless I am as well.
okay, maybe we're both idiots
posted by davejay at 2:05 PM on April 24, 2012 [1 favorite]
okay, maybe we're both idiots
posted by davejay at 2:05 PM on April 24, 2012 [1 favorite]
Because I am an idiot a sane and decent person, I'm surprised this wasn't already the case. FTFY.
posted by strixus at 2:06 PM on April 24, 2012 [9 favorites]
posted by strixus at 2:06 PM on April 24, 2012 [9 favorites]
Is this subject to appeal, or is the EEOC's ruling final?
According to the first link, ATF has 30 days to ask for the EEOC to reconsider, but barring that it "will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country [and] also will be binding on all federal agencies and departments."
I believe that ENDA would have passed years ago if gender identity language was taken out, as that has been my observation with the NYS legislature.
Gender identity was only added to versions from 2007 (after the Dem wave elections) on, but neither the 2007 nor multiple 2009 never went anywhere.
posted by zombieflanders at 2:07 PM on April 24, 2012
According to the first link, ATF has 30 days to ask for the EEOC to reconsider, but barring that it "will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country [and] also will be binding on all federal agencies and departments."
I believe that ENDA would have passed years ago if gender identity language was taken out, as that has been my observation with the NYS legislature.
Gender identity was only added to versions from 2007 (after the Dem wave elections) on, but neither the 2007 nor multiple 2009 never went anywhere.
posted by zombieflanders at 2:07 PM on April 24, 2012
Ever went anywhere.
posted by zombieflanders at 2:08 PM on April 24, 2012
posted by zombieflanders at 2:08 PM on April 24, 2012
Excellent!
The ENDA versions without trans protection made a lot of trans people bitter toward the HRC; sort of a bait-and-switch "are you protecting our rights or not?" A secondary wound that should also heal if the non-hobbled one goes through.
posted by Foosnark at 2:16 PM on April 24, 2012
The ENDA versions without trans protection made a lot of trans people bitter toward the HRC; sort of a bait-and-switch "are you protecting our rights or not?" A secondary wound that should also heal if the non-hobbled one goes through.
posted by Foosnark at 2:16 PM on April 24, 2012
About fucking time. Good for them.
posted by zarq at 2:19 PM on April 24, 2012 [1 favorite]
posted by zarq at 2:19 PM on April 24, 2012 [1 favorite]
Is this subject to appeal, or is the EEOC's ruling final?
Ok, let's start with terms. This is not a lawsuit. It is an administrative action by an applicant for federal employment. Here's how the process works. After an investigation, a federal employee can request a hearing before an EEOC Administrative Judge. The Agency, the Complainant or the Administrative Judge can move for a Decision Without a Hearing, which is analogous to a Summary Judgment Motion in a court of general jurisdiction. If the judge decides that there are issues of fact that need to be determined to adjudicate the claim, then the case goes to an administrative hearing. The rules of evidence are somewhat relaxed, but it is a contested case, with attorneys on both sides.
The Administrative Judge then issues a written opinion in the case. The Agency then issues a Final Agency Decision either agreeing or disagreeing with the Administrative Judge. Either party may then appeal to the full Commission. The Office of Federal Operations then comes up with a decision and moves forward for a vote.
The Agency can ask for a reconsideration within 30 days.
What this decision is not:
A decision granting rights to a person based on their sexual orientation. That is specifically excluded from Title VII. This is a decision saying that a transgendered person is covered by the sex-discrimination portions of Title VII.
Sexual orientation discrimination is prohibited by executive order, but the Commission may not hear cases on that bases, although the Agency will investigate them and I believe makes the decision based on its own interpretation of the E.O. prohibiting sexual orientation decision (in a status conference last month, Agency counsel and I basically told the AJ that this is how these complaints are handled. There is very little on that).
posted by Ironmouth at 2:24 PM on April 24, 2012 [9 favorites]
Ok, let's start with terms. This is not a lawsuit. It is an administrative action by an applicant for federal employment. Here's how the process works. After an investigation, a federal employee can request a hearing before an EEOC Administrative Judge. The Agency, the Complainant or the Administrative Judge can move for a Decision Without a Hearing, which is analogous to a Summary Judgment Motion in a court of general jurisdiction. If the judge decides that there are issues of fact that need to be determined to adjudicate the claim, then the case goes to an administrative hearing. The rules of evidence are somewhat relaxed, but it is a contested case, with attorneys on both sides.
The Administrative Judge then issues a written opinion in the case. The Agency then issues a Final Agency Decision either agreeing or disagreeing with the Administrative Judge. Either party may then appeal to the full Commission. The Office of Federal Operations then comes up with a decision and moves forward for a vote.
The Agency can ask for a reconsideration within 30 days.
What this decision is not:
A decision granting rights to a person based on their sexual orientation. That is specifically excluded from Title VII. This is a decision saying that a transgendered person is covered by the sex-discrimination portions of Title VII.
Sexual orientation discrimination is prohibited by executive order, but the Commission may not hear cases on that bases, although the Agency will investigate them and I believe makes the decision based on its own interpretation of the E.O. prohibiting sexual orientation decision (in a status conference last month, Agency counsel and I basically told the AJ that this is how these complaints are handled. There is very little on that).
posted by Ironmouth at 2:24 PM on April 24, 2012 [9 favorites]
the decision does not apply to any federal court case involving a private employer.
posted by Ironmouth at 2:24 PM on April 24, 2012 [1 favorite]
posted by Ironmouth at 2:24 PM on April 24, 2012 [1 favorite]
the decision does not apply to any federal court case involving a private employer.
So nothing changes for private employees, only government workers? Or am I misunderstanding this?
posted by trogdole at 2:33 PM on April 24, 2012
So nothing changes for private employees, only government workers? Or am I misunderstanding this?
posted by trogdole at 2:33 PM on April 24, 2012
Pony request: I need a way to be able to favorite real-world events.
posted by ourobouros at 2:40 PM on April 24, 2012 [1 favorite]
posted by ourobouros at 2:40 PM on April 24, 2012 [1 favorite]
As I read this, too, this is NOT a finding that ATF discriminated against Macy. This only opens the way to such a suit, and she still must prove that that was the case.
This is why Huffington Post generally sucks as a news source.
posted by Ardiril at 2:41 PM on April 24, 2012 [1 favorite]
This is why Huffington Post generally sucks as a news source.
posted by Ardiril at 2:41 PM on April 24, 2012 [1 favorite]
ourobouros: "Pony request: I need a way to be able to favorite real-world events"
I'm sure Facebook is working hard to put a thumbs-up button on everything in the whole world.
posted by Joakim Ziegler at 2:48 PM on April 24, 2012 [1 favorite]
I'm sure Facebook is working hard to put a thumbs-up button on everything in the whole world.
posted by Joakim Ziegler at 2:48 PM on April 24, 2012 [1 favorite]
Count me as another notch in the I can't believe it took this long category.
I've always thought that one day in the future they'll look back on the lawmakers of today in the same manner that we look back on the ones who passed Jim Crow laws: with an obvious sense of disdain and utter disbelief that this type of discrimination was somehow deemed appropriate.
Here's to hoping that day comes sooner rather than later.
posted by Blue_Villain at 2:49 PM on April 24, 2012
I've always thought that one day in the future they'll look back on the lawmakers of today in the same manner that we look back on the ones who passed Jim Crow laws: with an obvious sense of disdain and utter disbelief that this type of discrimination was somehow deemed appropriate.
Here's to hoping that day comes sooner rather than later.
posted by Blue_Villain at 2:49 PM on April 24, 2012
the decision does not apply to any federal court case involving a private employer.
So nothing changes for private employees, only government workers? Or am I misunderstanding this?
Note that there are other court decisions that already go this way, if you follow the main link. Those do apply to some private sector employees.
As I read this, too, this is NOT a finding that ATF discriminated against Macy. This only opens the way to such a suit, and she still must prove that that was the case.
This is why Huffington Post generally sucks as a news source.
I haven't seen the decision. If there was a Decision Without a Hearing that went against the Complainant (not a Plaintiff) stating no cause of action lied for sex discrimination against a transgendered person, then yes, the case would go down for a hearing.
posted by Ironmouth at 3:19 PM on April 24, 2012
So nothing changes for private employees, only government workers? Or am I misunderstanding this?
Note that there are other court decisions that already go this way, if you follow the main link. Those do apply to some private sector employees.
As I read this, too, this is NOT a finding that ATF discriminated against Macy. This only opens the way to such a suit, and she still must prove that that was the case.
This is why Huffington Post generally sucks as a news source.
I haven't seen the decision. If there was a Decision Without a Hearing that went against the Complainant (not a Plaintiff) stating no cause of action lied for sex discrimination against a transgendered person, then yes, the case would go down for a hearing.
posted by Ironmouth at 3:19 PM on April 24, 2012
My kids go to a school with a straight/gay alliance, which I think I've mentioned before (well, the younger one still does, the older is in college now).
We were having a discussion over the weekend, and according to my kids, it is not illegal in Florida to fire someone simply because that person is gay. When they told me that, I argued with them, because I was sure they had to be mistaken. That couldn't possibly be right!
But it is. According to the law here, as it stands employers can just fire someone based solely on sexual orientation, and it is perfectly okay for them to do so.
This pisses me off, naturally.
As one of my sons pointed out, if you are a gay employee who doesn't feel comfortable coming out (and why would you when you know the law is against you?), you are less likely to join in at work functions that require socializing, too. So maybe you go to less of those functions, and then you get pegged as not being a team player. This in turn gives the company an acceptable reason to claim they fired you, one which sounds better than openly saying it was because you're gay--even though that's really the basis for the firing. That our laws just allow this kind of casual discrimination in this day and age just sends me right over the edge.
So, to get to the point, I am glad to know of at least one transgender person who has apparently not been harassed in any way and who continues to work at a division of my husband's firm with no problems after transitioning.
And I'm really, really pleased that the EEOC did the right thing in the Mia Macy case, paving the way for other legal battles (and hopefully more judgments like this one), so this kind of crap gets turned around.
No one should have to hide who they are just to be able to work for a living.
posted by misha at 3:25 PM on April 24, 2012 [1 favorite]
We were having a discussion over the weekend, and according to my kids, it is not illegal in Florida to fire someone simply because that person is gay. When they told me that, I argued with them, because I was sure they had to be mistaken. That couldn't possibly be right!
But it is. According to the law here, as it stands employers can just fire someone based solely on sexual orientation, and it is perfectly okay for them to do so.
This pisses me off, naturally.
As one of my sons pointed out, if you are a gay employee who doesn't feel comfortable coming out (and why would you when you know the law is against you?), you are less likely to join in at work functions that require socializing, too. So maybe you go to less of those functions, and then you get pegged as not being a team player. This in turn gives the company an acceptable reason to claim they fired you, one which sounds better than openly saying it was because you're gay--even though that's really the basis for the firing. That our laws just allow this kind of casual discrimination in this day and age just sends me right over the edge.
So, to get to the point, I am glad to know of at least one transgender person who has apparently not been harassed in any way and who continues to work at a division of my husband's firm with no problems after transitioning.
And I'm really, really pleased that the EEOC did the right thing in the Mia Macy case, paving the way for other legal battles (and hopefully more judgments like this one), so this kind of crap gets turned around.
No one should have to hide who they are just to be able to work for a living.
posted by misha at 3:25 PM on April 24, 2012 [1 favorite]
Here's the Transgender Law Center's information about the case, including the ruling.
posted by gingerbeer at 3:58 PM on April 24, 2012 [2 favorites]
posted by gingerbeer at 3:58 PM on April 24, 2012 [2 favorites]
Quote from that link:
"The decision today follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination. But it has even broader implications than a court decision, because the EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation. The EEOC’s decision will impact every employer, public and private, throughout the nation. The decision is entitled to significant deference by the courts, and will be binding on all federal agencies.
Transgender Law Center’s Legal Director Ilona Turner explained, “It’s incredibly significant that the Commission has finally put its stamp of approval on the common-sense understanding that discrimination against transgender people is a form of sex discrimination. That’s true whether it’s understood as discrimination because of the person’s gender identity, or because they have changed their sex, or because they don’t conform to other people’s stereotypes of how men and women ought to be.” "
posted by gingerbeer at 4:00 PM on April 24, 2012 [1 favorite]
"The decision today follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination. But it has even broader implications than a court decision, because the EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation. The EEOC’s decision will impact every employer, public and private, throughout the nation. The decision is entitled to significant deference by the courts, and will be binding on all federal agencies.
Transgender Law Center’s Legal Director Ilona Turner explained, “It’s incredibly significant that the Commission has finally put its stamp of approval on the common-sense understanding that discrimination against transgender people is a form of sex discrimination. That’s true whether it’s understood as discrimination because of the person’s gender identity, or because they have changed their sex, or because they don’t conform to other people’s stereotypes of how men and women ought to be.” "
posted by gingerbeer at 4:00 PM on April 24, 2012 [1 favorite]
Oh man if the US ends up beating Canada to widespread (legal, at least) protection for transgender people's rights I'm gonna-
...be pretty happy for y'all, I guess. Can't really work up anything bad about this beyond shame.
This one is a no-brainer. In my head it's like an old college prep test.
Disability : Perceived Disability :: Sex Discrimination : Trans Discrimination. It's the logical presentation form of it.
posted by Lemurrhea at 4:21 PM on April 24, 2012
...be pretty happy for y'all, I guess. Can't really work up anything bad about this beyond shame.
This one is a no-brainer. In my head it's like an old college prep test.
Disability : Perceived Disability :: Sex Discrimination : Trans Discrimination. It's the logical presentation form of it.
posted by Lemurrhea at 4:21 PM on April 24, 2012
How does the Stephen King FPP have (at this point) 144 comments and this one only 26? No disrespect to mightygodking intended.
posted by Splunge at 5:19 PM on April 24, 2012 [1 favorite]
posted by Splunge at 5:19 PM on April 24, 2012 [1 favorite]
The SK FPP has a greater outrage quotient.
posted by Ardiril at 5:40 PM on April 24, 2012 [1 favorite]
posted by Ardiril at 5:40 PM on April 24, 2012 [1 favorite]
Blue_Villain: "Count me as another notch in the I can't believe it took this long category."
While I'm also very happy about this decision, we have to be careful not to assume that trans rights are now enshrined firmly in law. They are not. As others have posted in this thread, the decision is somewhat limited, and is definitely subject to change. Heck, it doesn't even cover discrimination with regards to housing. In other words, we still need ENDA.
posted by jiawen at 6:29 PM on April 24, 2012 [1 favorite]
While I'm also very happy about this decision, we have to be careful not to assume that trans rights are now enshrined firmly in law. They are not. As others have posted in this thread, the decision is somewhat limited, and is definitely subject to change. Heck, it doesn't even cover discrimination with regards to housing. In other words, we still need ENDA.
posted by jiawen at 6:29 PM on April 24, 2012 [1 favorite]
The SK FPP has a greater outrage quotient.
Well, we could debate whether the title of this post is appropriate... (Am I the only one wondering if a raised eyebrow is appropriate?)
posted by hoyland at 7:55 PM on April 24, 2012
Well, we could debate whether the title of this post is appropriate... (Am I the only one wondering if a raised eyebrow is appropriate?)
posted by hoyland at 7:55 PM on April 24, 2012
"I know what you're thinking, ... and you ought to be ashamed of yourself."
posted by Ardiril at 8:19 PM on April 24, 2012
posted by Ardiril at 8:19 PM on April 24, 2012
As always, truth takes a backseat to process.
That process is designed to help plaintiffs. Normally, one has to have direct evidence of anything to win on any claim. The McDonnell-Douglas standard is designed to help plaintiffs meet evidentiary burdens far easier. There should be exactly zero complaints about the process from the plaintiff's side.
posted by Ironmouth at 7:59 AM on April 25, 2012
That process is designed to help plaintiffs. Normally, one has to have direct evidence of anything to win on any claim. The McDonnell-Douglas standard is designed to help plaintiffs meet evidentiary burdens far easier. There should be exactly zero complaints about the process from the plaintiff's side.
posted by Ironmouth at 7:59 AM on April 25, 2012
zombieflanders: " who claimed she was denied a job as at the Bureau of Alcohol, Tobacco, Firearms and Explosives after she announced she was transitioning from male to female."
To me that particular incident isn't discriminatory in the least and makes good common sense.
If a potential employee tells me they will be going through extremely major surgery why is it unfair to hire them? If they are already transitioned, fine. However, if they are about to, they will be missing lots of work, when they are at work, they will often be at less than their best both physically and emotionally. They will not be a good employee. I wouldn't refuse to hire them because of their orientation, I would refuse to hire them because (presumably) they couldn't perform their duties.
Of course you would then end up with people not disclosing the fact of their intended surgery which would result in problems but I am talking about this particular situation.
If a potential employee was told that the employer's place of business would be going through massive renovations and there could be long stretches without customers to earn a paycheck he'd be less inclined to start working until after the renovations were complete.
posted by 2manyusernames at 8:43 AM on April 25, 2012
To me that particular incident isn't discriminatory in the least and makes good common sense.
If a potential employee tells me they will be going through extremely major surgery why is it unfair to hire them? If they are already transitioned, fine. However, if they are about to, they will be missing lots of work, when they are at work, they will often be at less than their best both physically and emotionally. They will not be a good employee. I wouldn't refuse to hire them because of their orientation, I would refuse to hire them because (presumably) they couldn't perform their duties.
Of course you would then end up with people not disclosing the fact of their intended surgery which would result in problems but I am talking about this particular situation.
If a potential employee was told that the employer's place of business would be going through massive renovations and there could be long stretches without customers to earn a paycheck he'd be less inclined to start working until after the renovations were complete.
posted by 2manyusernames at 8:43 AM on April 25, 2012
To me that particular incident isn't discriminatory in the least and makes good common sense.Mia Macy was discriminated against solely because of her declaration of intent to transition. Surgery of any kind would not have been on the table yet at that early stage of the process (and for many who transition, it might never be, because of the sheer cost, medical concerns, or other reasons). And, even if she was going to undergo surgery, it makes absolutely no sense to me that the act of surgery would affect future work performance in any way. I don't understand how you could think that someone who is transitioning would suddenly become unable to perform their duties. Do you honestly believe that?
If a potential employee tells me they will be going through extremely major surgery why is it unfair to hire them? If they are already transitioned, fine. However, if they are about to, they will be missing lots of work, when they are at work, they will often be at less than their best both physically and emotionally. They will not be a good employee. I wouldn't refuse to hire them because of their orientation, I would refuse to hire them because (presumably) they couldn't perform their duties.
This kind of thinking is exactly why we need ENDA passed.
posted by yeoz at 10:39 AM on April 25, 2012 [2 favorites]
If a potential employee tells me they will be going through extremely major surgery why is it unfair to hire them? If they are already transitioned, fine. However, if they are about to, they will be missing lots of work, when they are at work, they will often be at less than their best both physically and emotionally. They will not be a good employee. I wouldn't refuse to hire them because of their orientation, I would refuse to hire them because (presumably) they couldn't perform their duties.
That was not the legitimate, non-discriminatory reason the Agency claimed to take its employment action upon. It claimed another employee was further along in the security clearance process.
posted by Ironmouth at 10:40 AM on April 25, 2012
That was not the legitimate, non-discriminatory reason the Agency claimed to take its employment action upon. It claimed another employee was further along in the security clearance process.
posted by Ironmouth at 10:40 AM on April 25, 2012
However, if they are about to, they will be missing lots of work, when they are at work, they will often be at less than their best both physically and emotionally. They will not be a good employee. I wouldn't refuse to hire them because of their orientation, I would refuse to hire them because (presumably) they couldn't perform their duties.
This line of reasoning would presumably also result in not hiring a pregnant woman, either, which is considered illegal discrimination.
posted by Pryde at 5:01 PM on April 25, 2012 [3 favorites]
This line of reasoning would presumably also result in not hiring a pregnant woman, either, which is considered illegal discrimination.
posted by Pryde at 5:01 PM on April 25, 2012 [3 favorites]
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