Transgender Workplace Discrimination Not Prohibited Under Law, Attorney General Says

Kathy Gurchiek By Kathy Gurchiek October 6, 2017
Transgender Workplace Discrimination Not Prohibited Under Law, Attorney General Says

​U.S. Attorney General Jeff Sessions issued a memorandum Thursday, instructing the Justice Department that federal law does not protect transgender individuals from workplace discrimination based on sex. The action reverses the Justice's Department's stance since December 2014, when then-U.S. Attorney General Eric H. Holder Jr. said that transgender individuals were protected from workplace discrimination under the law.

In his memo, Sessions noted that although federal law—including Title VII of the Civil Rights Act of 1964—provides various protections to transgender individuals, "it does not prohibit discrimination based on gender identity per se."

"This is a conclusion of law, not policy," he said in the memo. "As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."

"Nothing in this memorandum should 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," he wrote in the two-page document.

"Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII."

He cited the Matthew Shepard and James Byrd Jr.  Hate Crimes Prevention Act and the Violence Against Women Reauthorization Act, noting that the DOJ "has vigorously enforced such laws, and will continue to do so, on behalf of all Americans, including transgender Americans."

What this means, according to The New York Times, is that the Department of Justice (DOJ) "will no longer side with transgender plaintiffs in workplace lawsuits invoking the Civil Rights Act. It will either stay on the sidelines or tell courts that the law should not be interpreted as banning discrimination by the employers," according to the newspaper's interpretation of the memo.

Sessions' directive reverses guidance from Holder, who served as attorney general in President Barack Obama's administration. In his December 2014 memo, Holder said his reading of Title VII's prohibition of sex discrimination "is that it encompasses discrimination based on gender identity, including transgender status." the paper said.

He cited the federal government's evolving approach to the issue, pointing out that the Equal Employment Opportunity Commission (EEOC) in 2012 ruled that discrimination on the basis of gender identity is discrimination on the basis of sex (Macy v. Holder, Appeal No. 0120120821). Holder also noted in his memorandum that Obama had announced in a July 2014 executive order that "discrimination based on gender identity is prohibited for purposes of federal employment and government contracting."

And EEOC Commissioner Jenny Yang, whose tenure is coming to a close, said her greatest success when she was EEOC chair from Sept. 1, 2014, to Jan. 22, 2017, was helping the agency interpret Title VII more broadly to prohibit discrimination based on sexual orientation and gender identity, Law360 reported last month.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Sessions' memo also conflicts with the EEOC's stance regarding transgender individuals. Last month, the EEOC sued A&E Tire for alleged sex-based discrimination against a transgender job applicant, citing Title VII of the Civil Rights Act of 1964

EEOC spokesperson Christine Saah Nazer declined to comment about the Sessions memo.

"We did receive the memo from DOJ, but need time to review it," she told SHRM Online.

For employers who have already edited employee handbooks, assuming protection for transgender employees, making revisions to those handbooks would be premature, said Monte Grix, attorney in the Santa Monica, Calif., office of Hirschfeld Kraemer LLP.

"For one, aside from California, 18 other states and the District of Columbia bar employment discrimination on the basis of gender identity. So employers need to be mindful of what jurisdictions they are doing business in," he said.  

"Additionally, …the letter does set the policy of the Department of Justice and other federal agencies, but it sets no legal precedent.  Moreover, the federal outlook for transgender employment protections is far from settled." 

It would be prudent, Grix advised, to take "a wait-and-see-approach."

Attorney Sam Schwartz-Fenwick, a partner with Seyfarth Shaw LLP's Chicago office, noted that the new directive is at odds with the majority of federal courts that have analyzed transgender workplace protections.

He leads his firm's LGBT Affinity Group. He has also served as a contributor to Employee Benefits Law, a publication by the American Bar Association, and The Developing Labor Law (Bloomberg BNA, 2012) and he developed in conjunction with Equality Illinois a best practices guide for Illinois employers on LGBT inclusion.

"Until the Supreme Court weighs in on this hotly disputed issue, employers should consult with counsel to evaluate their internal policies, practices, and procedures with an eye toward transgender claims," he said in an e-mail statement. 

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