It has been over a year since I last wrote about Mia Macy and her lawsuit, the Employment Non-Discrimination Act (ENDA), and the state of employment discrimination for transgender people like Macy. To review, Macy was tentatively offered a position as a ballistics expert at the Bureau of Alcohol, Tobacco and Firearms (ATF), pending a background check, and the background check revealed her gender transition. The hiring manager then told Macy the position was being eliminated due to budget cuts and hired another applicant. Her high-profile lawsuit against the ATF for rescinding this job offer has resulted in a long and arduous battle in court. Now her work has finally paid off.
Earlier this month, a Justice Department decision was handed down in favor of Macy, ruling that the ATF broke the law in not offering her a job as a ballistics expert -- a move the ruling says was motivated by direct discrimination based on her gender identity. The ruling requires the ATF to again offer the job to Macy, pay her back pay and benefits with interest, and cover all of 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.
Macy’s hallmark challenge was already considered a victory last year when the complaint she filed with the Equal Employment Opportunity Commission (EEOC) prompted the agency to independently rule that Title VII of the 1964 Civil Rights Act bans employers from discriminating based on an employee’s gender identity or expression. Her Department of Justice suit win this year only extends and celebrates the progress she began in ultimately ensuring a more just and equitable body of employment law for the United States labor force.
The benefit this has for employer-employee relations, employee productivity, and general satisfaction with job environment safety and morale is obvious. I have written previously about why more inclusive employment anti-discrimination protections are both sound social policy and sound business policy – employees and job applicants feel less anxiety about their workplace environments, employers reap the benefits of happier and more qualified applicant pools, and diverse workplaces encourage a respectful and productive mode of labor that better mirrors the country’s diversity outside of the workplace.
All of those outcomes remain true with Macy’s DOJ win. 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.
The federal government’s sudden activism on behalf of transgender employees is curious, then, as it also continues to stall the passing of ENDA at the federal level. While Macy’s DOJ win is significant, it only applies to her individual case and to her particular employer. ENDA, as a more comprehensive plan to protect all of the nation’s employees, is a preventative measure, and remains absolutely necessary. If the government wishes to remain consistent with the spirit of its findings in Macy’s case, then it must move forward in considering ENDA. Its passage will be 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.
However, even ENDA has its limits, and they point to the failings of employment and labor law in this country more broadly. While ENDA certainly has a symbolic significance and a legal usefulness for transgender employees, real change cannot only rely on the jurisdictions of the court system. The effectiveness of employment protections for everyone, not just transgender people, is less than satisfactory. While proponents of ENDA push its necessity by pointing out that it is legal to fire someone for identifying as transgender in 34 states, in the 49 states where “at-will” employment law is the overarching standard, it is completely legal to fire someone for any reason at all and without explanation.
As we move away from Macy’s case, it is economically, socially, and legally important that transgender activists mobilizing within workers’ rights causes have a stake in the larger, more structural state of employment law for everyone, and vice versa. It is only when we finds the ways to consider all critiques across the board that we can find the change-oriented solution that the transgender community has been fighting for throughout Macy’s legal battles. With this shared understanding, we can build the most just and equitable workplaces for transgender people, and indeed all people.