How the EEOC Protects Gay Workers

Published in: September-October 2012 issue.


CHAI FELDBLUM is one of five commissioners on the federal Equal Employment Opportunity Commission.  She was appointed to that post by President Obama in March 2010.               

Founded 47 years ago out of the Civil Rights Act of 1964, the EEOC is a bipartisan, independent agency that investigates, conciliates, and litigates complaints of employment discrimination across the U.S. Commissioner Feldblum has had a lead role in crafting regulations following the passage of the Americans with Disabilities Amendments Act, and travels the country educating employers and employes about their rights and obligations under EEOC regulations.

    Prior to joining the EEOC, Feldblum was a lead drafter of the Employment Non-Discrimination Act (ENDA), a pending bill before the U.S. Congress that would prohibit employment discrimination based on a person’s real or perceived sexual orientation or gender identity. Feldblum is a professor of law on leave from Georgetown University Law Center, where she founded the Federal Legislation Clinic.

    This interview was conducted over the phone, and transcribed in real time by the interviewer, on July 2, 2012.


Erika Rickard: To begin, would you share a little bit about the EEOC’s work and your role on the Commission?
Chai Feldblum: It’s very fortuitous that we’re talking on July 2nd, which is the 48th anniversary of President Johnson signing the Civil Rights Act of 1964, which created the EEOC. It opened its doors one year later. We were underfunded from the start: the agency got ten times more charges than Congress had anticipated, so there was always a pending inventory of complaints.

The Civil Rights Act of 1964 said for the first time that private employers could not discriminate in employment on the basis of race, color, national origin, or sex. Congress could have given the authority to enforce the law to an executive agency, to the Department of Labor or the Department of Justice, the way it does with most laws. But instead it decided to create a new independent agency, a commission headed by five people, no more than three of whom can come from same political party, so it built into the structure of the agency consistent representation from the party not in power, whether it be Republican or Democrat. I think it was done partly because civil rights were seen as an issue that should not be partisan, but partly because people were afraid of civil rights. So they figured at least let’s try to create an agency that has representation for both political parties. Actually, that’s important when you think about the Macy Decision [which held that transgender people are protected under Title VII], which was issued on April 20, 2012, by a 5-0 decision. I think the unanimity sends an important message for bipartisan support for this aspect of civil rights.

Congress created the agency as a way to help employers and to some extent applicants and employees, by requiring any applicant or employee who felt she had been discriminated against on the basis of race, color, religion, national origin, or sex to come to the EEOC first to tell their story, and to have the Commission investigate that story. And if the Commission felt that there was probable cause to think that discrimination had occurred, to first bring the employer or union into the office with the applicant or employee, and try to settle the complaint before it could go to court. So before you could go to court and claim discrimination, you had to first give the EEOC a chance to investigate and try to conciliate with your employer or union. But the EEOC can also litigate cases, which is another tool in its toolkit. It’s not just up to the individual to find a lawyer and bring a case in court.

So the EEOC’s impact on civil rights is significant, and it’s varied in terms of the types of the levers it can pull. The first lever is education and training, to stop discrimination before it starts, and tools to help employees, so that they know what their rights are, to understand what is illegal as opposed to just unfair. A lot of what our investigators do is tell folks what is illegal under the law. But for everyone being discriminated against, for example, because of their race, class, age, disability, there is at least a possibility of redress.

ER: The EEOC recently took an important step in LGBT rights with its ruling on gender identity discrimination. Can you share a little bit about the ruling?
CF: The ruling in Macy v. Holder makes clear that all transgender people are covered under Title VII protections if they experience discrimination because they are transgender, and the analysis in the case also makes clear that lesbian, gay, and bisexual people should enjoy the same protections under sex discrimination. But the case itself happened to deal with someone who is transgender.

In this case the EEOC did not decide whether Mia Macy actually experienced discrimination, because we were deciding an earlier question, but the most important question was a jurisdictional one, which is whether the EEOC has authority under Title VII to hear a case of someone who alleged discrimination based on being transgender. We answered yes. In this case, Mia Macy had applied to be a ballistics technician at a lab in California. She applied while she was a man, the process for hiring was proceeding smoothly, she was going through her background checks, and she then informed the contractor who was doing the hiring that she had transitioned and would be starting as a woman. Three days later the job mysteriously disappeared. Macy filed a complaint with the Department of Justice—something all employees and applicants can do—saying that she had been discriminated against because of sex, because of her gender identity status. The DOJ stated clearly that the EEOC did not have jurisdiction to hear a case about gender identity or transgender status under sex discrimination, and that DOJ would hear this case under a separate process that they had set up. So the limited and targeted legal question before us on appeal was, Did we have jurisdiction to hear this case under our sex discrimination law, Title VII?

In hearing the case, we were following what a number of other courts had already said, which is that sex discrimination includes gender stereotyping, and if you discriminate against someone who is transgender, you are inherently engaging in gender stereotyping. The only reason you have a problem is because of a stereotype. A number of courts who had used gender stereotyping as a basis for finding protection for transgender people had been very focused on the outward presentation of gender as opposed to the underlying prejudice that a biological man shouldn’t become a woman. We made it more clear, in the same way that the 11th Circuit had recently done, that discrimination against transgender people is inherently gender stereotyping. The other thing we did—perhaps more important for lesbian, gay, and bisexual individuals—is to explain that gender stereotyping clearly indicates that gender was being taken into account. The Supreme Court case of Price Waterhouse, which is where a lot of this stems from, said that it’s not valid under Title VII to take gender into account. So, in my offices we talked about how it’s not okay to have “gender on the brain.” If you’re engaging in gender stereotyping, that’s evidence that you’re taking gender into account, and you don’t even have to move to gender stereotyping. So, for example, in the Macy case, either the employer is deciding that the applicant is not okay when presenting as a man, or that it’s okay when she was a man but not when she was a woman.

Macy is clear that there are two theories to prove that sex discrimination has occurred. First, I could argue, for example, that I’m very gender-conforming in my presentation, femme to the max, down to my manicure—but apparently I violate an inherent gender stereotype that women should be having sex with men. Consider two other cases in addition to Macy. In one case, the stereotype was that she was having sex with women as opposed to with men, but in this case, we have no description of the woman, no idea what she looks like. In the other case, this guy was harassed for putting an announcement of his marriage to a man in the local paper. Again, we have no idea what this man looked like, but our office is saying, “Look, it’s a gender stereotype that men should marry women as opposed to men.” While LGB people have always been protected under gender stereotyping analysis, most courts have used that to protect only those who are gender-nonconforming in their presentation and dress.

But a second theory emerges: I think it’s clear now that you can also use the fact that they’re violating the inherent stereotype in terms of who they’re attracted to. You can skip the gender-stereotyping analysis and just say, if you are taking gender into account, that’s not okay. If I was saying to my employer, “My partner this, my partner that,” and my employer thinks my partner is a man, and then I say, “She’s coming back next week,” and suddenly that’s a problem for my employer, obviously that employer is taking gender into account.
Here’s the final piece of this. One of the things we say in the Macy decision is that it’s not creating a new class of people. Because often in the early years, in the 70’s, LGBT people tried to get protected under Title VII and were slapped down by the courts, because sex only means men or women (which was reversed when the Supreme Court expanded the view of sex in Price Waterhouse). But another reason they gave was that Congress didn’t intend to cover this class of people. But in the Oncale case, ten years after Price Waterhouse, Justice Scalia, ruling for the Court, said that same-sex sexual harassment is covered under Title VII, which made it clear that it’s not the intent of the legislature that matters, but the words of the statute. It all depends on what the words “discrimination because of sex” mean. But even after Oncale, courts seem to have difficulty applying sex discrimination law to LGBT people—again, I think, because of this idea that it’s creating a new class. If an employer says, “I’ll hire Christians and I’ll hire Jews, but not Christians who convert to Judaism,” that is discrimination because of religion. It’s not like you are covering a new class of people, the class of people called Christian converts. By the same token, if Congress says you cannot discriminate based on sex, and if you’re fine with an employee when you think she’s dating a guy but not when you find out she’s dating a woman, you are taking sex into account. This is, on its face, a violation of Title VII.

To me, it’s just that we needed some of the social norms to change before courts could absorb what is the stunningly simple protection of sex discrimination. I think it was just too hard for people to see that religion is really not so different. Thirty years ago, it would have been impossible for most of America to grasp this idea. In 2012, I think more people realize that it’s about being true to who you are. For some people, being true to who they are is about changing their religion; for others it’s about getting their outward sex to conform to their felt gender identity; and to others it’s about being honest about living with and loving the person of the same sex.

Really, the law here is remarkably simple: is gender on the brain? But it’s very understandable to me how in the 1970’s the courts didn’t buy it. They didn’t buy it partly because it was pre-Price and pre-Oncale, but also because they couldn’t wrap their brains around it. Now I think it’s really pretty straightforward and should be.

ER: Let’s talk about the Employment Nondiscrimination Act, or ENDA. Where are we in the long struggle to pass a national law?
CF: ENDA has been in utero since 1993. I was one of the leaders in 2005 that promoted an effort to have it reintroduced in Congress, only [this time]with gender identity. At that point I felt that both gay and transgender people should be covered under Title VII, but that they both needed to be explicitly included in ENDA. So, from my perspective, Congress still needs to pass ENDA in this inclusive way, including sexual orientation and gender identity. By passing ENDA, it will make it absolutely clear and definitive that LGBT people enjoy employment protection in this country. That’s why ENDA is needed—not because people are not covered right now under Title VII. If you think you are being discriminated against for your sexual orientation or your gender identity in the workplace, you shouldn’t wait: you should come right down to the EEOC office.

That’s why it’s wrong to say that there’s no protection right now for gay and transgender people. There is protection, at least for trans people. The legal reasoning that the EEOC used to rule about transgender people applies equally to gay people. So we should all be saying that Title VII, appropriately applied, protects all of us right now. But the operative words there are “appropriately applied.” Any transgender person, any lesbian, gay, or bisexual person right now can feel with some confidence that they can walk into an EEOC office and get their claim investigated. So, in practice, many LGBT people can get protection right now under the law. But if an employer doesn’t agree, then either the EEOC or the individual has to go to court, and a court is not bound by our legal reasoning. Hopefully our reasoning is persuasive, and three circuit courts have held that transgender employees are covered under Title VII.

Ultimately, the courts may not agree with the stunningly simple legal analysis, and the final word about protection under Title VII can only come from the Supreme Court. That’s several years away, so the race is on between the Supreme Court and Congress. Either Congress passes ENDA and signals that they want to make it more clear in a separate law, or the Supreme Court will end up getting a case dealing with a transgender or gay person and will (I hope) follow the reasoning in the EEOC and say, Yes, they are covered right now under Title VII.

There is also a race right now between the Supreme Court and Congress on DOMA. There, I would bet on the Supreme Court being first. There’s a lot of support for ENDA in Congress. It’s so politically driven, so if there’s enough of a swelling of support for Democratic candidates around the country, and if the House actually becomes Democratic and the Senate stays Democratic, I think there’s a good chance for ENDA in the next few years, way sooner than a case wending its way up to the Supreme Court. By contrast, DOMA challenges are further along right now, while I think the repeal of DOMA would be harder for Congress than passage of ENDA. That’s why I think the Supreme Court will win that race. I am very optimistic about the outcome of both of those legal challenges in the courts and in Congress. To me, it is truly a matter of when, not if.

ER: The latest legal development for DOMA is the decision in the Gill case, in which DOMA was ruled unconstitutional by the First Circuit Court of Appeals. The appeal to the Supreme Court was recently brought by the U.S. House of Representatives. The Court will probably decide in October whether or not to hear the appeal. What do you see as the prospects when that happens?
CF: I’m hoping they put off taking the Gill case, given that Justice Kagan will presumably have to be recused from that case, and I believe there’s a number of other cases coming up. My hope is they sort of hold off on Gill, given that they know they wouldn’t be able to address that with a full court, and wait and take one where they can address with a full court.

ER: Do you think there’s a genuine shift in the political climate around passage of ENDA?
CF: Whether to include gender identity in ENDA is becoming less and less difficult. It certainly was initially. I think we went through a traumatic period for the movement when gender identity was removed from ENDA, which I did not agree was smart.

The more that it becomes clear that both transgender and lesbian, gay, and bisexual people have protection under Title VII right now, the less scary it will be for Congress to say, “Oh well, let’s just clarify that in ENDA, and let’s just clarify that for both transgender people and gay people.” So I hope the Macy decision makes it easier for Congress to realize what’s at stake in terms of ENDA, that Congress is not needing to go out on a limb here by passing ENDA. They’re essentially closing the loop, making it that much more clear that LGBT people are protected in employment.

There is no way ever to predict how Congress as a whole will react to things. I took an oath as a commissioner to implement the law, I think that’s what we’re all doing in terms of existing law, but I think that instead of leaving people up to the vagaries of whether one court or another agrees with the EEOC, it’s so much better to have a clear, strong law that explicitly says that transgender and gay people are protected from discrimination. It can’t be that we need that law because there is no other protection—that’s not true; there is some other protection. The point is that it’s not as clear and definitive as it should be.



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