A recent announcement by U.S. Attorney General Jeff Sessions regarding the Justice Department’s position on Title VII’s protection of gender identity has many employers scratching their heads trying to understand the law’s protections. At issue: the Attorney General’s position clashes with various federal, state, and local opinions, leaving employers with the arduous task of deciding how to tackle potential adverse employment actions.
What is Title VII?
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sex, among other protected characteristics. In its most basic form, this means that an employer may not legally take an employment action based on a person’s sex, such as hiring, promotion, compensation, termination, etc. Title VII also prohibits sexual harassment in the workplace, pregnancy discrimination, and discrimination based on a factor in addition to sex such as women with children, married women, or women from a minority group.
In addition, Title VII provides protections beyond simply favoring women over men. In 1989, the U.S. Supreme Court held that Title VII also prohibited employment decisions made based on sexual stereotypes, that is, stereotypes or cultural presumptions as to how women or men are presumed to act or how women or men appear physically. This means that an employer’s adverse action against a woman that takes into consideration her masculine wardrobe or macho or aggressive behavior is prohibited “sexual stereotyping” under Title VII.
The Attorney General’s Interpretation
However, the Attorney General has recently informed us that, at least according to the Department of Justice, sexual stereotyping is not the same as gender identity when it comes to Title VII’s protections. In a memorandum sent to various agency heads and US attorneys, Attorney General Sessions stated that Title VII of the 1964 Civil Rights act does not cover “gender identity” as one of its protected classes and that the Department of Justice will now take the position in court cases that the law does not protect transgender workers. The memorandum went on to state that the Department of Justice will continue to protect transgender individuals through other laws by enforcing hate crime laws, which explicitly protect gender identity and sexual orientation.
Gender identity refers to the gender a person identifies with, regardless of the sex assigned to that person at birth. Transgender refers to someone who identifies with a sex other than the one he or she was born with and who may have taken steps toward living as another gender. The Attorney General’s announcement explicitly reversed the position of the Department of Justice under President Obama, which was designed to protect transgendered individuals, and is a departure from the way the law has been developing at the U.S. Equal Employment Opportunity Commission (EEOC) and in the courts.
Other Notable Positions
The EEOC has taken the position that sex discrimination under Title VII includes discrimination against transgender individuals and discrimination based on gender identity or gender expression. According to the EEOC, taking an adverse employment action against someone because the person is transgender or because the person intends to transition from one gender to another would violate Title VII. In addition, the EEOC also believes that refusing to allow a transgender individual to use the restroom appropriate for the gender the individual identifies with or refusing to use a transgender employee’s correct name and pronoun also violates Title VII.
The EEOC’s position, however, only applies to private employers through the EEOC’s administrative process and is not binding on any case moved from the EEOC to a federal court. The federal court decisions are binding, however, on employers in those jurisdictions. An increasing number of federal courts, though not all, have allowed claims of discrimination against transgender individuals to proceed under Title VII.
Outside of the federal government, state and local governments have enacted laws prohibiting discrimination on the basis of transgender and gender identity in employment. In the D.C. Metro area this includes both the District of Columbia and Maryland, which both prohibit employment discrimination on the basis of gender identity or expression. In addition, President Obama issued Executive Order 13672 in 2014 prohibiting discrimination by federal contractors on the basis of both sexual orientation and gender identity.
These varying viewpoints have created significant ambiguity within not only the courts but within the federal government itself as to whether gender identity or transgender status are protected by Title VII. In addition, under the burden of proof for an action under Title VII, a plaintiff need not prove that the protected status, in this case gender identity or transgender status, was the only reason for the adverse action, but only that it was a motivating factor. In light of this, employers analyzing a potential adverse employment action involving these issues should consult with counsel before taking action on this basis.