Does Title VII Prohibit Transgender Discrimination?

November 9, 2017
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Attorney General Jeff Sessions Stated That Title VII of the Civil Rights Act of 1964 Does Not Prohibit Transgender Discrimination

Employers are likely getting whiplash in the wake of the Trump Administration’s frequent reversals of many Obama-era workplace rules and policies. Most recently, Attorney General Jeff Sessions stated that Title VII of the Civil Rights Act of 1964 does not prohibit employment discrimination against transgender persons.

Does Title VII Prohibit Transgender Discrimination?

Photo courtesy of Mike Wilson (Unsplash.com)

DOJ Policy Reversal on Gender Identity Discrimination

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s … sex.” Because the federal anti-discrimination law does not elaborate, questions have arisen concerning the appropriate legal standard for establishing claims of gender identity discrimination, including discrimination claims brought by gay, lesbian, and transgender individuals.

In 2014, then-Attorney General Eric Holder issued landmark guidance stating that the Department of Justice had “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”  President Obama also issued an Executive Order establishing that discrimination based on gender identity is prohibited for purposes
of federal employment and government contracting.

Earlier this month, Attorney General Sessions reversed course. “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status,” Sessions wrote in a memo to U.S. attorneys and federal agency leaders.

The memo states that the new policy will take effect in all pending and future litigation and enforcement matters, except where controlling lower court precedent dictates otherwise. It also advises that the DOJ’s revised position should not be “construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.”

DOJ Policy Contradicts EEOC and Court’s Decisions

The DOJ’s position contradicts the position adopted by the Equal Employment Opportunity Commission (EEOC). As we have previously discussed in prior articles, the EEOC has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) workers against employment discrimination. Among other rationales, the agency argues that “sexual orientation is inseparable from and inescapably linked to sex” and, therefore, “allegations of sexual orientation discrimination involve sex-based considerations.”

The new DOJ policy on gender identity discrimination is also at odds with federal court decisions. In April, the Seventh U.S. Circuit Court of Appeals held in Kimberly Hively v. Ivy Tech Community College that Title VII’s ban on sex discrimination extends to gender identity. “Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” Judge Diane Wood wrote. “That means that it falls within Title VII’s prohibition against sex discrimination if it affects employment in one of the specified ways.”

In September, the Second Circuit Court of Appeals heard oral arguments in Zarda v. Altitude Express. The estate of Donald Zarda is continuing the Title VII discrimination suit of deceased gay skydiving instructor who alleged he was fired after disclosing his sexual orientation. With several other federal cases pending, the issue could soon be resolved by the U.S. Supreme Court.

The Message for New Jersey Employers

In New Jersey, the Law Against Discrimination includes “gender identity and expression” as a protected class. Accordingly, any discrimination and/or retaliation against transgender workers would be proper grounds for an employment lawsuit under state law.

Therefore, even though transgender workplace may not be actionable under federal law, New Jersey employers are advised to not only implement a written employment policy against sex-based discrimination but also ensure that it is strictly enforced. As with other employment policies, that means providing training to all managers and developing procedures to verify that all complaints are thoroughly investigated.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Sean Dias, at 201-806-3364.

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