By Jonathan Bryant, Equal Employment Opportunity Commission
In the last two weeks (see below), we have contrasted the current state of the Seventh Circuit’s Title VII LGBT jurisprudence with opinions from the Supreme Court and other jurisdictions and highlighted an easy-to-miss development in the law prompted in part by the Equal Employment Opportunity Commission’s (EEOC) participation as amicus. In the next two weeks, we will take a closer look at the commission’s role in assuring coverage of LGBT individuals. This week we’ll consider three federal-sector cases—two where the commission has found Title VII coverage of LGBT employees and one pending in court.
Mia Macy is a transgender woman – that is, at birth she was assigned the male sex but identifies as female. When presenting as a male, she applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives. The bureau told Macy, an experienced police detective, that the job was hers pending a background check. A couple of months later, she informed the bureau she was transitioning to female. Within days, she learned that she would not be getting the job after all. The bureau offered two explanations: First, funding was no longer available for the position; second, the position was filled by another applicant further along in the background check process.
Macy, experienced detective that she is, became suspicious about the true cause of her elimination from consideration and filed a complaint alleging discrimination based on sex prohibited by Title VII. The bureau determined her complaint that she was discriminated against because her transgender status was not covered by Title VII. Macy appealed to the EEOC.
Citing the cases discussed last week—Smith v. City of Salem, Glenn v. Brumby, Price Waterhouse v. Hopkins, Oncale v. Sundowner Offshore Services—and a host of others, the commission concluded, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.
An announcement of Jason Veretto’s upcoming marriage appeared in a local newspaper. A colleague read the announcement and learned Veretto would be marrying a male partner. Harassment, including threats of violence, ensued. Veretto complained to management, but the agency’s response was insufficient to halt the harassing behavior. Veretto filed a formal complaint, but the agency dismissed it, reasoning that Title VII does not prohibit discrimination based on sexual orientation.
Veretto appealed to the commission, which reversed. Relying on Price Waterhouse v. Hopkins, the EEOC’s Office of Federal Operations, on behalf of the Commission, ruled that Veretto had stated a viable sex stereotyping claim: The hostile work environment began when Veretto’s colleague learned Veretto was not marrying a woman, but a man, in contravention of the sexual stereotype that marrying a woman is an essential part of being a man. The commission cited the Veretto decision with approval in Complainant v. Dept. of Homeland Security, EEOC DOC 0120110576, 2014 WL 4407422. (For other agency decisions, see here.)
Federal courts are applying the same logic, as illustrated by Terveer v. Billington, No. 12-1290, 2014 WL 1280301 (D.D.C., March 31, 2014). John Mech learned that Peter Terveer, his subordinate at the Library of Congress, is gay. Terveer alleged that after Mech’s discovery, Mech subjected Terveer to sex discrimination.
Terveer alleged that Mech subjected him to unlawful sex discrimination because Terveer’s sexual orientation was not consistent with Mech’s perception of acceptable gender roles, that his homosexuality failed to conform to Mech’s gender stereotypes and that because of his homosexuality, Terveer no longer fit within Mech’s definition of a male. The court ruled, based on Price Waterhouse, the allegations were sufficient to state a claim.
As we’ll see in our final installment next week, these federal sector cases have helped launch a larger initiative to protect the equal employment opportunities of LGBT individuals.
Per IndyBar Board policy, only the current blog post is publicly available. IndyBar members have access to all section and division postings by logging in to the website. Previous posts in this series will be viewable in PDF format. See below for previous entries in this blog series:
The Law's Development Since the 80s
In a Small Step, Seventh Circuit Signals Greater Recognition of Title VII Rights of LGBT Employees
This post is authored by Jonathan Bryant, Trial Attorney for the U.S. Equal Employment Opportunity Commission in its Indianapolis District Office. The views expressed in this post are his own, not necessarily those of the Commission. You can email him at Jonathan.Bryant@eeoc.gov.