Chai Feldlum was nominated by President Obama to serve as one of the 5 commissioners of the Equal Employment Opportunity Commission (EEOC) and subsequently confirmed by the U.S. Senate in December 2010. Commissioner Feldblum has done amazing work at the EEOC, including working on protections for transgender people. The first openly LGBT Commissioner of the EEOC, she was the lead drafter the Employment Nondiscrimination Act (ENDA). Before being nominated by President Obama, she was a Georgetown Law Professor, served as Legislative Counsel to the AIDS Project of the ACLU and played a leading role in the drafting of the Americans with Disabilities Act of 1990 and the ADA Amendments bill in 2008.
Commissioner Feldblum has been touring the country recently to reach out to the LGBT community and discuss some of the important recent developments at the EEOC. She stopped by the GSBA offices on Monday, September 10 to meet with a group of Seattle community leaders.
Did you know that the EEOC has ruled that bias based on gender identity or transgender status amounts to sex discrimination under Title VII of the Civil Rights Act? The Macy v. Holder decision, officially approved by the Commission, applied “not only to complaints of discrimination filed against federal agencies, but also to charges of discrimination against transgender individuals that are filed against private sector employers with more than 15 employees, or against state and local government employers.”
While the specific ruling of the Macy case specifically addresses gender identity and not sexual orientation, Commissioner Feldblum suggests that there is a clear argument for covering sexual orientation discrimination under Title VII as well, based on established rules against gender stereotyping. The Commission’s reasoning means that:
persons discriminated against on the basis of sexual orientation may have valid sex discrimination claims. For this reason, in a memo dated July 30, 2012, the Office of Federal Operations (OFO) of the EEOC advised all federal EEO directors that lesbian, gay and bisexual employees and applicants who believe they have been discriminated against on the basis of sexual orientation should be counseled that they have a right to file a complaint under the 1614 process of Title VII as they may have experienced sex discrimination.
If someone files a charge of discrimination with their local EEOC office, they are advised to list “sex” as the basis for the alleged discrimination. It will then be up to the EEOC investigator to determine whether there is reasonable cause to believe that gender was inappropriately taken into account in an employment decision.