While some states, including Oregon, have chosen to prohibit employment discrimination on the basis of sexual orientation or gender identity, federal law currently does not. Recent legal developments seem to signal that a fundamental change may be on the horizon, and LGBT rights activists have had several recent successes. For example, the highly anticipated Supreme Court decision in the Defense of Marriage Act case United States v. Windsor invalidated the provision of the law that defined marriage as the “union of one man and one woman,” opening the door for the federal government to recognize same sex marriage. In addition, a current law proposed in Congress known as the Employment Non-Discrimination Act (ENDA) would prohibit discrimination on the basis of sexual orientation and gender identity by employers.
Another recent decision in favor of LGBT rights seems to continue this trend. According to a report published in the Huffington Post, advocates of transgender rights scored another win earlier this month in a Department of Justice ruling that held that the Bureau of Alcohol, Tobacco and Firearms (ATF) violated the law when it did not offer a qualified applicant a job because she was transgender. Mia Macy, a former Phoenix police officer, filed suit claim against the agency in 2011 alleging that she was not hired due to her transgender status. When she first applied, Macy was a self-identified male, but by the end of the process, she identified as female. The report indicates that Macy was informed that she was not hired for the position due to budget cuts, but then later learned that someone else had been hired for the position.
Macy’s case had already broke new ground for transgender rights last year when the Equal Employment Opportunity Commission (EEOC) ruled that Title VII of the Civil Rights Act of 1964 prohibited discrimination towards people who identify as transgender. The effect of this ruling applies across all federal agencies, and means that anyone who is discriminated against in an employment setting may file a complaint with the EEOC. The types of employment decisions or actions that may warrant a complaint include the following:
-Decisions in hiring or firing
-Being passed up for a promotion or advancement
-Comments or behavior at the workplace that create a hostile work environment
-Inappropriate sexual comments or advances
These are just a few examples of the kinds of conduct that could constitute sexual harassment at the workplace. As the EEOC ruling is relatively new, it will take some time for employers to put policies in place that minimize the risk of transgender discrimination from occurring. As a result, anyone who believes that they are being subjected to sexual harassment due to their transgender status should consult with an experienced employment law attorney as soon as possible.
