Tuesday, May 1, 2012

EEOC rules that transgender discrimination is illegal

http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt

Excerpts:


Mia Macy,
Complainant,

v.

Eric Holder,
Attorney General,
Department of Justice,
(Bureau of Alcohol, Tobacco, Firearms and Explosives),
Agency.

Appeal No. 0120120821

Agency No. ATF-2011-00751

DECISION

On December 9, 2011, Complainant filed an appeal concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.  For the following reasons, the
Commission finds that the Complainant’s complaint of discrimination
based on gender identity, change of sex, and/or transgender status is
cognizable under Title VII and remands the complaint to the Agency for
further processing.
BACKGROUND1

Complainant, a transgender woman, was a police detective in Phoenix,
Arizona.  In December 2010 she decided to relocate to San Francisco
for family reasons.  According to her formal complaint, Complainant was
still known as a male at that time, having not yet made the transition
to being a female.

Complainant’s supervisor in Phoenix told her that the Bureau of Alcohol,
Tobacco, Firearms and Explosives (Agency) had a position open at its
Walnut Creek crime laboratory for which the Complainant was qualified.
Complainant is trained and certified as a National Integrated Ballistic
Information Network (NIBIN) operator and a BrassTrax ballistics
investigator.

Complainant discussed the position with the Director of the Walnut
Creek lab by telephone, in either December 2010 or January 2011, while
still presenting as a man.  According to Complainant, the telephone
conversation covered her experience, credentials, salary and benefits.
Complainant further asserts that, following the conversation, the Director
told her she would be able to have the position assuming no problems arose
during her background check.  The Director also told her that the position
would be filled as a civilian contractor through an outside company.

Complainant states that she talked again with the Director in January
2011 and asked that he check on the status of the position.  According to
Complainant in her formal complaint, the Director did so and reasserted
that the job was hers pending completion of the background check.
Complainant asserts, as evidence of her impending hire, that Aspen of
DC (“Aspen”),2 the contractor responsible for filling the position,
contacted her to begin the necessary paperwork and that an investigator
from the Agency was assigned to do her background check.3

On March 29, 2011, Complainant informed Aspen via email that she was
in the process of transitioning from male to female and she requested
that Aspen inform the Director of the Walnut Creek lab of this change.
According to Complainant, on April 3, 2011, Aspen informed Complainant
that the Agency had been informed of her change in name and gender.
Five days later, on April 8, 2011, Complainant received an email from
the contractor’s Director of Operations stating that, due to federal
budget reductions, the position at Walnut Creek was no longer available.

According to Complainant, she was concerned about this quick change
in events and on May 10, 2011,4 she contacted an agency EEO counselor
to discuss her concerns.  She states that the counselor told her that
the position at Walnut Creek had not been cut but, rather, that someone
else had been hired for the position.  Complainant further states that
the counselor told her that the Agency had decided to take the other
individual because that person was farthest along in the background
investigation.5  Complainant claims that this was a pretextual explanation
because the background investigation had been proceeding on her as well.
Complainant believes she was incorrectly informed that the position
had been cut because the Agency did not want to hire her because she
is transgender.
...
CONCLUSION

Accordingly, the Agency's final decision declining to process
Complainant's entire complaint within the Part 1614 EEO complaints process
is REVERSED.  The complaint is hereby REMANDED to the Agency for further
processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. § 1614.108 et seq.  The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final.  The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time.  If the Complainant
requests a final decision without a hearing, the Agency shall issue
a final decision within sixty (60) days of receipt of Complainant’s
request. A copy of the Agency’s letter of acknowledgment to Complainant
and a copy of the notice that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013.  The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant.  If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order.  29 C.F.R. §�
�1614.503(a).  The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.”  29 C.F.R. §§ 1614.407 and 1614.408.

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