...and the lack thereof
It was April of 2012 when I first wrote about Mia Macy's case against the ATF, which hired her to be a ballistics technician, pending a background check…then took it back after the check revealed she was transgender. The hiring manager told her the position was eliminated by budget cuts---and then hired someone else. The big news at the time was that the EEOC issued a ruling on the case:
[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ….The EEOC referred to Title VII of the 1964 Civil Rights Act in its ruling.
In early July the DOJ ruled (pdf) that the ATF broke the law by not offering her the job because she was directly discriminated against because of her gender identity. The ruling required the ATF to again offer the job to Macy, pay her back pay and benefits with interest, and cover her legal costs.
Even better, the decision stipulates that the agency must implement its own anti-discrimination policies to be applied to all its other employees and future job applicants.
What is unique about Macy’s case is that, for the first time, the federal government is backing challenges of private and government employers by the transgender community. The DOJ decision in Macy’s case represents a significant precedent in the government’s interest in and implementation of more aggressive anti-discrimination policies, especially at the federal level.Which would be great, but…
--Tyler S. Bugg, The Next New Deal
Isn't there always a "but"?
Tom Perez has been Labor Secretary for more than a month now. Earlier this month I wrote about the inaction at the Labor Department about acting…or rather, failing to act…on the EEOC ruling. At that time it was hoped that after Secretary Perez settled in, something might happen.
After all, the Department has that authority. Indeed it is supposed to be following an executive order. The order comes not from President Obama but from Lyndon Baines Johnson. Executive Order 11246 bans federal contractors doing more than $10,000 a year of business with the federal government from discriminating on the basis of race, sex, religion, or national origin. Enforcement power resides with the Department of Labor. Under departmental policies the EEOC ruling should have caused the Labor Department to expand its definition of sex to include gender identity.
But the Labor Department has issued no public guidance on the ruling. And no official at the department has been willing to comment on the issue.
On Tuesday Buzzfeed asked one more time for comment.
I don’t have anything on that, I’m afraid, but I’ll let you know if anything changes.The previous time the spokesperson had been asked, it was indicated there would be information this time.
--Laura McGinnis, department spokesperson
July 2012: Labor Secretary Hilda Solis:
[The office has been] working on this issue for a long time.Since then department spokespeople have had nothing to offer, despite repeatedly being asked by BuzzFeed.
I direct you to [Patricia] Shiu, on my staff, my director there, because I’m just coming back from extensive traveling.
Perez was considered the big hope because he previously had a good record of pro-LGBT enforcement at the Civil Rights Division of the Justice Department.
As I indicated when I wrote about this before, Tico Almeida of Freedom to Work that "Labor Department leadership has been severely controlled by the Senior White House staff, which I'm told has forbidden Labor officials from formally adopting the Macy decision."
Perfect. Just perfect.
Buzzfeed asked a White House spokesperson for comment…but again got none.
More than a month later, neither the White House nor the Labor Department have denied the charge. In addition to inquiries made Tuesday with Labor Department officials, a request Tuesday afternoon to a White House official for a response to Almeida’s charge was not returned.Transpeople do not have a "seat at the table." So how about we find out where we stand from the Human Rights Campaign.
It is HRC’s position that in light of the EEOC’s Macy decision, the current federal contractor executive order should be interpreted to include anti-transgender discrimination and we have made that clear to the Labor Department. As we have discussed with officials there, it is imperative that they adopt this interpretation to give recourse to those discriminated on the basis of their gender identity.Almeida continues to push.
--Michael Cole-Schwarz, HRC
Enormous corporate contractors like ExxonMobil are signing new federal contracts on a regular basis, and the Labor Department is not inserting Macy workplace protections into those binding agreements along side the provisions giving African-Americans, Latinos, women, veterans and all Americans the freedom to work without discrimination.And of course:
The recalcitrance of the White House staff is going to make Secretary Perez look lawless, if they continue to refuse to issue official guidance adopting the unanimous and bipartisan Macy decision well over one year after it became federal law. I hope Secretary Perez can persuade the senior White House staff to stop dragging their feet on our pathway to LGBT workplace fairness.
While Macy’s DOJ win is significant, it is ultimately a reactionary response of the courts. It only applies to her individual case and to her particular employer. The Employment NonDiscrimination Act, as a more comprehensive plan to protect all of the nation’s employees, is instead a preventative measure, and thus absolutely necessary. If the government wishes to remain consistent with the spirit of its findings in Macy’s case, ongoing stagnation of ENDA consideration is not an option. Its passage is an important next step for extending benefits of protection past Macy to all other persons fired, not hired, or denied a promotion or salary increase as a result of their gender and sexuality identity statuses.So, it turns out, that "Sea Change" I wrote about in April 2012 has become nothing more than a draining tidal pool.