We have received some questions about the full legal and practical consequences of the Equal Employment Opportunity Commission (EEOC) Macy decision—and whether the Employment Non-Discrimination Act (ENDA) is still legally or practically necessary for transgender people to experience equality on the job. The answer is complex and nuanced, but here’s the bottom line: the EEOC decision is incredibly useful, but we still need ENDA to end transgender job discrimination.
The EEOC decision has significantly moved us forward, but we need ENDA to take us the rest of the way. Until we are there, transgender people now have recourse with the EEOC that they can and should utilize (See our Know Your Rights at Work resource for how to do so). Let me explain why both the EEOC ruling is so important, and why we still need ENDA.
1. What does the Equal Employment Opportunity Commission ruling do?
Before the EEOC’s Macy decision, when a transgender person filed a complaint with the EEOC for job discrimination, the EEOC used to spit it back out—saying that there was no basis for the claim—and telling people that they could bring a lawsuit in court if they wanted to. Now, after the Macy decision, the EEOC takes these complaints and processes them—both offering to help negotiate a settlement and investigating the complaint. A few people have successfully won settlements using this process, which is great. (It should be noted though that the EEOC has a backlog because it is understaffed for the number of complaints it receives, meaning this process takes a long time. We are thankful, though, that the EEOC has prioritized LGBT enforcement in its latest strategic plan). However, the bigger limitation is that an employer isn’t required to negotiate at all—the employer can just say they don’t care what the EEOC says and “sue us.” Yet, because the EEOC complaint process is time consuming and arduous for an employer, the fact that the EEOC is doing an investigation may make it more likely that the employer will settle instead of ignore an EEOC complaint. The possibility of settlement this way is of great practical benefit for transgender people. By the way, for federal employees, the EEOC decision was binding—and the EEOC can award damages to federal employees if a federal agency discriminates without them having to file a lawsuit.
2. What if an employer won’t settle through the EEOC?
If an employer doesn’t want to settle, the transgender person doesn’t get anything unless they can file a lawsuit—which they will have a hard time winning without an attorney. The EEOC is only able to essentially act as a person’s attorney in very select cases (300 are selected out of 100,000 complaints filed with the EEOC each year), so chances are that a person will need to pay an attorney to take the case (which is expensive) or convince a contingency-fee attorney to take the case (where the attorney only gets paid if the lawsuit is successful years down the road). But it can be very difficult to get a contingency fee attorney to take a transgender job discrimination case because they aren’t sure they can win in court—since courts won’t necessarily agree with the EEOC that transgender people are covered by sex discrimination laws (see next question). There are not enough free legal resources in the movement to assist all the trans people with these lawsuits, meaning that generally those without money will not be able to file suit. Another problem with lawsuits is that they can take years to finish, so one must always keep that in mind—a lawsuit isn’t always the best back-up plan.
3. Will the courts agree with the EEOC that sex covers transgender people?
Fortunately, in recent years, there is a trend in federal courts to agree that transgender people are protected under sex discrimination laws. Nonetheless, before the EEOC decision, there were certain federal circuits where transgender people had won cases under sex discrimination and there were other federal circuits where transgender people lost. The EEOC is not a court—and courts are not required to follow the EEOC’s analysis, no matter how much we think it is correct. The Supreme Court is the only body that can definitively say that transgender people are covered by sex discrimination law. So, federal courts are free to ignore the EEOC decision, just as they are free to ignore the good cases from other circuits. So, while the great analysis in the Macy decision—and the strong recent trend in the courts—will be persuasive to many judges because it is so thorough and well-reasoned, a judge can independently decide that transgender people are not covered, even though we are hopeful they will decide in our favor. Thus, unfortunately, whether or not transgender people are truly legally covered by sex discrimination laws is not yet settled law. This means that employers are still more likely to take the risk on a lawsuit—and refuse to settle. And, it means that contingency fee attorneys are less likely to take a person’s case, because even if they prove there was anti-transgender discrimination, they might lose on the question of whether transgender people are protected by existing federal sex discrimination law, and they don’t like to take cases they might lose.
4. What would ENDA add?
ENDA would add two very significant things. First, it would settle, once and for all, that transgender people do have federal employment protections. That means that employers would be more willing to stop discrimination right as it is about to happen for fear of triggering a lawsuit. And employers would be more likely to settle a complaint when it is filed, and that contingency-fee attorneys are more likely to take a transgender person’s case if someone needs to sue.
Second, it would trigger a series of actions by employers that will decrease discrimination from happening in the first place. Three things will happen:
- It would trigger nearly every employer to update its non-discrimination policy with the words “gender identity” raising awareness among all employees that they cannot discriminate.
- Those employers who do training on discrimination would now include transgender discrimination and education as standard aspects of that training.
- Employers would have to update existing posters in their workplaces that say workplace laws include “gender identity.”
When these last things happen, this will be the true magic of the Employment Non-Discrimination Act. There would be widespread knowledge that anti-transgender discrimination is illegal. Think about how the Americans with Disabilities Act has changed the landscape for people with disabilities—we need that type of transformation for transgender people.
5. What about state and local laws covering gender identity? Are they necessary given the EEOC ruling?
Absolutely, just as ENDA is still very necessary. As explained above, the protections that the EEOC ruling offers are incomplete, and often only available to people who can hire an attorney with their personal funds (and that presumes that a judge will also rule in their favor or that an employer will be scared enough to settle). State/local laws that include gender identity mean that transgender people will have immediate and clear recourse under these state/local laws and will not have to try to persuade their employer that the EEOC ruling is correct with regard to federal law.
Yet, even after ENDA becomes law and clears up that there are federal employment protections once and for all, we still need state and local laws. This is for many reasons:
- State and local employment non-discrimination laws often apply to a wider range of employers than federal laws. For example, they may cover all employers regardless of their number of employees, while federal laws are limited to those with more than 15 employees.
- State and local nondiscrimination laws almost always cover other areas of life, such as housing, education, credit, and public accommodations, while ENDA and Title VII only cover employment.
- State and local laws often have easier-to-use resolution processes, without a backlog like the EEOC has, where employers and employees can go to resolve immediate situations. Often there is a human rights commission or another agency that a person can come to in an emergency, such as a person whose employer has told them that they will be fired if they gender transition at work. In addition, for those who have to go to court to prove their claim, having a state law means that state courts are an option for filing a lawsuit, which may be faster than pursuing a federal lawsuit.
- Employers can often consult state or local human rights commissions to get quick advice in advance on how to respond to individual situations that they are not sure how to address.
Our laws have a way of becoming our moral code as a society – so we can predict confidently that in the years and decades after passage, society will eventually decide that it is not okay to discriminate against transgender people in employment and in other areas of life as well, and people will in fact stop discriminating because they don’t think it is right to discriminate. Of course this process will take years or decades to be fully done, but success is very dependent on having a clear law like ENDA.