By Jonathan K. Driggs, Attorney at Law

The U.S. Equal Employment Opportunity Commission—the federal agency that enforces employment discrimination laws throughout the country—recently issued a decision declaring that the term “sex” under Title VII of the Civil Rights Act of 1964 includes not only employees’ biological sex but also their gender identity and transgender status (Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, April 20, 2012). This is the first time the EEOC has formally taken such a position. While there have been some recent U.S. court decisions that have begun to partially expand the definition of “sex”, traditionally the definition under Title VII has been limited to a person’s biological gender.  The result is that employees now appear to have the ability under federal law to file complaints of discrimination with the EEOC based upon gender identity and expression.

While approximately sixteen states in the U.S. have laws that prohibit sexual orientation and gender identity discrimination, the state of Utah is not one of them. As a result, this is an important development for employers in states like Utah (Note: the following cities and counties in the state of Utah have passed their own local ordinances prohibiting sexual orientation and gender identity discrimination in employment: Alta, Grand County, Harrisville, Logan, Murray, Midvale, Moab, Ogden, Park City, Salt Lake City, Salt Lake County, Springdale, Summit County, Taylorsville, West Valley City).

This decision results in a major expansion of a protected class and serves as one more reason why employers should consider adding sexual orientation and gender identity to their EEO policies if they haven’t done so already.  Examples of actionable complaints under gender identity would include:

  • An employee, who was born male, claiming discrimination or harassment in the workplace for dressing and living as a woman;
  • A female employee claiming discrimination for not conforming to gender-based stereotypes (e.g., acting in a manner deemed to be too masculine).

When it comes to the practical ramifications from this legal development, there are some challenging (and unanswered) questions.  One such challenging issue pertains to bathroom usage.  Over the years I have had several phone calls from employers who are trying to balance the needs of transgender employees and their coworkers about who belongs in which bathroom.  In our Utah workplaces—which tend to be fairly socially conservative—management personnel will need to watchful for potential situations involving transgender employees.  This is an area of the law that will likely see a lot of attention over the next few years.  Stay tuned!


This article should not be construed as legal advice.  Copyright ©2012 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.


Jonathan K. Driggs is an employment law attorney with over 19 years of experience, including 3 years with the Utah Labor Commission.


Jonathan’s popular “Employment Law for Managers Seminar” is being offered by several “Custom Fit Programs” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers):

For employers in Utah County: Wednesday, September 26 at the Mountainland Applied Technology College’s Thanksgiving Point campus.  For details and registration contact Randy Reeves, 801-753-4217 or Roger Rice, 801-753-4153.

For employers in Davis County: Wednesday, October 3 at Davis Applied Technology College campus in Kaysville.  For details and registration call 801-523-2100 and ask about the “Employment Law for Managers Seminar.”

For employers in Salt Lake County: Thursday, October 10 at the SLCC Miller Campus in Sandy.  For details and registration contact: Shannon Strickland at SLCC Custom Fit at 801-957-5293.

For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see:   This seminar is appropriate for employers with 15 or more employees.


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