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June 8, 2012

HR Fact Friday: EEOC Concludes That Gender Identity Bias Is Sex Discrimination

Acting in a federal administrative proceeding, the Equal Employment Opportunity Commission (EEOC) has ruled that claims of gender identity discrimination can be asserted as claims of sex discrimination. The case involved a federal agency’s decision not to hire a male applicant who was transgendering into a female. The applicant alleged gender identity and sex bias. When the case reached the EEOC during administrative proceedings, the EEOC ruled that the gender identity issues were validly asserted under existing law because “gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”  Thus, the EEOC concluded that discrimination based on transgender status in and of itself is sex discrimination.  The agency explained that this is true regardless of whether the employee’s bias is due to discomfort about an employee’s expression of gender in non-traditional ways or because of a gender transition process. Employers should carefully consider this analysis when dealing with issues of employee gender identity at work, for this ruling could increase the number of gender identity claims filed with the EEOC. Here is an excellent article on the subject: http://www.seyfarth.com/publications/si051012

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