EEOC Says Title VII Protects Transgender Workers

On April 23, the Equal Employment Opportunity Commission (“EEOC”) released a decision stating that for purposes of Title VII, sex discrimination encompasses discrimination against transgender individuals, who are individuals who self-identify as a different gender from their biological sex at birth. The EEOC reiterated that Title VII’s prohibition on sex discrimination includes discrimination based on gender in addition to discrimination based on biological sex. According to the EEOC, gender discrimination occurs whenever an employer treats an individual differently for not conforming to gender-based expectations of behavior or cultural norms. The Supreme Court has previously stated that an employer may not take gender into account when making employment decisions, but the EEOC’s decision is the first to directly address the issue of whether transgender individuals are covered under Title VII.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments. However, findings and decisions by the EEOC are not binding on courts.

As a result of the EEOC’s decision, transgender individuals who believe that they are victims of workplace discrimination may now file claims with the EEOC at any of its offices. Although the decision was issued in a case of a potential employee at a federal agency, private employers should also take note of this decision, as it may affect all employers subject to Title VII.

If you have any questions regarding any matters discussed in this briefing, please contact any of the Winston & Strawn Labor & Employment Relations Practice Group attorneys listed below or your usual Winston & Strawn contact.

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