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EEOC Recognizes Transgendered Status as Basis for Title VII Claim

May 9, 2012

On April 23, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a decision determining that claims of discrimination based on transgender status or gender identity are cognizable under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC reasoned that when an employer discriminates against someone because the person is transgender or identifies as the opposite gender, the employer has engaged in disparate treatment related to the sex of that employee.

Since 2007, gender identity or expression has been recognized as a protected class in New Jersey based on an amendment to the New Jersey Law Against Discrimination (“NJLAD”). Eleven other states (including California, Colorado, Illinois, Iowa, Maine, Minnesota, New Mexico, Oregon, Rhode Island, Vermont and Washington) and the District of Columbia have also enacted laws prohibiting employment discrimination based on gender identity or expression. While Title VII protects individuals from employment discrimination based upon race, color, religion, sex and national origin, the federal law does not specifically recognize transgender status or gender identity or expression as protected classes. Although the EEOC has historically deemed claims of discrimination based on transgender status as not actionable under Title VII, this recent decision is a distinct change from those prior EEOC decisions.

This EEOC decision applies to a federal agency, however, it is likely that it will apply to both public and private employers. The decision may also be afforded deference by federal courts, some of which have already determined that Title VII provides protection against discrimination against transgendered employees.

Finally, while New Jersey has protected transgender status and gender identity or expression for several years, New Jersey employees who feel that they have been victims of such discrimination can now pursue claims either through the state courts or by filing a charge with the EEOC. This decision reaffirms the importance for employers to review their policies and procedures to ensure that they contain a non-discrimination and harassment policy protecting such individuals.

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 | cwells@wolffsamson.com

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 | mwood@wolffsamson.com

Denise J. Pipersburgh, Associate
(973) 530-2090 | dpipersburgh@wolffsamson.com