The Relationship between the EEOC’s Decision that Title VII Prohibits Discrimination Based on Gender Identity and the Enforcement of Executive Order 11246

By Nan D. Hunter, Christy Mallory, and Brad Sears
May 2012

New analysis finds that a recent ruling from the U.S. Equal Employment Opportunity Commission (EEOC) that gender identity discrimination is unlawful will likely be extended to federal contractors. The EEOC opinion held that gender identity or expression discrimination violates the prohibition on sex discrimination under Title VII of the 1964 Civil Rights Act. By executive order (EO 11246), federal contractors are similarly prohibited from sex discrimination.

Sex discrimination complaints against federal contractors filed pursuant to the existing executive order are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency within the Department of Labor. The OFCCP has an explicit policy of interpreting the executive order in a manner consistent with Title VII, and has followed the EEOC’s regulations and guidance in enforcing the order. Further, complaints filed with the OFCCP are either directly enforced by the EEOC or enforced by OFCCP officers acting as agents of the EEOC.

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The EEOC decision was in Mia Macy, Appeal No. 0120120821 (EEOC April 20, 2012), which can be found at: http://www.scribd.com/doc/90910497/EEOC-Ruling.