Congress may have dragged its feet on establishing anti-discrimination rules involving gender identity issues, but the Obama administration has issued its own guidance.
Attorney General Eric Holder announced that the Department of Justice will take the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.
In a memo, Holder states “the straightforward reading of Title VII is that discrimination ‘because of … sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”
This reverses the department’s earlier position that Title VII’s prohibition against discrimination based on sex excluded discrimination based on gender identity per se, including transgender discrimination.
As you’ll remember, the proposed Employment Nondiscrimination Act (ENDA) — which would establish a federal law barring employment discrimination based on sexual orientation and gender identity — has been languishing in Congress for several years. Holder’s move is the latest move by the Obama administration to push the measure through administratively.
What’s it mean for employers? Not much, at least for now. The DOJ does not have authority to file suit against private employers, so the new rules only strictly apply to federal workers and contractors.
But, according to a blog post from the law firm Ford & Harrison:
… The DOJ’s shift of position further solidifies the federal government’s position on this issue, which may influence courts in deciding gender identity or transgender discrimination claims filed against private employers under Title VII. While the outcome of such lawsuits is far from clear, employers may be able to avoid expensive and often protracted litigation by promulgating and enforcing anti-discrimination policies that include gender identity and transgender status.