The Justice Department’s Complaint Adjudication Office (CAO) issued a decision on July 8 holding that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) violated Title VII of the Civil Rights Act in 2011 when it denied a position as a contract Ballistics Forensic Technician to an applicant who was in the process of transitioning from male to female. In its first such ruling, the CAO applied an earlier decision in the case by the Equal Employment Opportunity Commission (EEOC), which ruled that discrimination because of an individual’s gender identity is sex discrimination that violates Title VII. The case is Macy v. ATF, Agency Complaint No. ATF-2011-00751.
Most of the CAO’s opinion, which is signed by Complaint Adjudication Officer Mark L. Gross and Attorney Complaint Adjudication Officer Carl D. Taylor, Jr., is devoted to a detailed exposition and analysis of the evidence obtained during the investigation of this charge, after the EEOC had overruled a prior determination by the Justice Department that Mia Macy’s complaint was not covered by Title VII. The opinion reads a bit like a detective procedural, since there are conflicting and detailed accounts of what had happened leading to a decision by the ATF Walnut Creek Laboratory Chief Donna Read, apparently on April 5, 2011, to terminate the processing of Macy’s application for the position.
Macy had worked as a detective in the Phoenix (Arizona) Police Department and acquired familiarity with certain technology that was also in use at the ATF lab. While employed with the PPD, Macy was known as Charles DeMasi. Macy informed her boss in Phoenix that she was planning to move to the San Francisco Bay Area, and her boss said that he knew of an opening for which she would be qualified at the ATF lab in Walnut Creek near San Francisco. Upon her expression of interest, he called the Section Chief at the lab and recommended DeMasi, who then followed up with phone conversations with the Section Chief. Macy’s recollection and notes of the calls reflect that she was told the position would be hers after the background check performed by the contractor, Aspen of D.C., which was charged with screening and hiring applicants. Macy submitted her information to Aspen, and later in the course of the background process revealed to Aspen her intended transition, including name change, which necessitated presenting additional documentation for the background investigation.
The Walnut Creek lab had been intending to hire two people for this work, and both Macy and another candidate were being put through the background investigation by Aspen. When the word got back to Walnut Creek about Macy’s gender transition, suddenly there was a decision that they could hire only one person, and would go with the other applicant who was “further along” in the background process. Macy, who had been previously informed that things were moving forward on her application, and that her gender transition would not be an issue, suddenly received an email communication that due to budgetary concerns the position for which she had applied would not be filled, and that she would be contacted if another position opened up in the future. Something seemed fishy to Macy, who called for further information and was subsequently told that she could be offered a human resources position with another unit of ATF in Seattle for which she was not qualified and had no interest. She subsequently filed her discrimination complaint with the Justice Department.
The investigators questioned ATF staff and Aspen staff to try to determine how the decision was made to discontinue processing Macy’s application and to inform her that the position was not available for her. The staffers all insisted that Macy’s gender identity and transition from male to female had nothing to do with the decision, but the investigators concluded otherwise based on inconsistencies in the stories they were told, the suspicious timing of the decision, and Macy’s superior credentials compared to the other candidate who was hired. The other candidate did not have the past experience and training with the relevant technology that Macy had, and the background investigation of the other candidate raised various suitability questions that were not present in Macy’s background. Also, the other candidate’s progress through the background investigation was not really much further along than Macy’s. There were also implausible assertions about training issues, and – most suspiciously – certain internal communications immediately after Read learned of Macy’s gender transition that reflected an abrupt change in direction of the hiring process without any credible non-discriminatory explanation.
“The finding of Title VII discrimination based on ATF’s apparent consideration of complainant’s transgender status is not a simple one to make,” says the opinion. “Notably, at the time of the incident at issue here, essentially between March 30 and April 5, 2011, ATF management officials were not aware that taking employment actions based on the fact that an individual was male or female after a transgender transition was legally impermissible. At that time, the Department of Justice had not yet changed its internal regulations to prohibit employment actions based on transgender status, and the EEOC had not yet held that such action violated Title VII’s ban on discrimination on the basis of sex. It may have been that ATF officials were taken aback by the sudden and clearly unexpected announcement that the applicant they knew as Charles DeMasi was now Mia Macy. That does not, however, in any way condone or excuse the actions taken here, which are now a violation of Title VII.”
Focusing on the reason why Macy was denied the position, the Office found that the record supported her claim of discrimination. “The record established that the ATF intended and began taking steps to hire complainant for the position – until she disclosed that she was transitioning from a man to a woman. The ATF stopped complainant’s hiring process when it learned that complainant, formerly Charles DeMasi, would become Mia Macy. In light of the EEOC’s decision in this case to hold that actions based on transgender status are actions based on sex and therefore covered by Title VII, the ATF’s actions were discrimination based on sex and therefore prohibited by Title VII.” The Opinion observed the close analogy of this case to Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), in which a highly qualified applicant for a technical research position at the Library of Congress, who had been offered the position, was suddenly not an acceptable candidate after having revealed her plan to transition. In that case, the District Court ruled that the Library violated Title VII’s ban on sex discrimination by rescinding its job offer. Schroer was an important judicial precedent for the EEOC’s subsequent ruling in Macy’s case that her complaint could be dealt with under Title VII as a sex discrimination claim.
As a remedy for the discrimination, the Decision orders ATF to offer Macy the position she was seeking, giving her fifteen days to respond to any such offer, with backpay and other benefits back to the date she would have started employment in the absence of the discriminatory termination of her hiring process. The Decision orders ATF to “take appropriate corrective action to prevent any discrimination from occurring” at the Walnut Creek lab. Macy will also be entitled to compensatory damages “if she can demonstrate that she suffered injuries as a direct result of the discrimination found to have occurred,” including compensation for emotional distress if any can be documented. Also, as prevailing party in the case, Macy will be entitled to be compensated for any attorney fees she has incurred in pressing forward her discrimination claim.