In prior Alerts, we reported that the OFCCP was set to release final rules on banning discrimination against gay, lesbian, bisexual and transgender (LGBT) individuals in accordance with President Obama’s Executive Order 13672. We also noted that EEOC is about to take a stand on this issue on grounds that cases of gender preference discrimination are covered by Title VII under “gender stereotyping,” which they feel is protected under Title VII.
Now comes the DOJ, which on 12/15/14 announced it will follow in the EEOC’s footsteps in supporting the position that Title VII covers sex discrimination and includes bias based on gender identity and transgender status. In his announcement, Attorney General Holder stated that the DOJ “will no longer assert that Title VII's prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.” Holder also stated that the DOJ’s new position is “designed to foster consistent treatment of claimants throughout the government and reduce confusion.” He stated further:
In addition to applying to the department's civil obligations in defending federal interests, this memo clarifies the Civil Rights Division's ability to file Title VII claims against state and local public employers on behalf of transgender individuals.
The OFCCP position is based on an executive order and seems solid. However, the positions advanced by the EEOC and now the DOJ are based on an EEOC ruling on a case involving a federal agency, not a federal district court. It should be interesting to see how the EEOC and DOJ will fare in federal court.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
