Attorney General Jeff Sessions on October 4, 2017 issued a memorandum to all US Attorneys signaling a change in the previously articulated position of the United States Department of Justice (DOJ) on transgender employment discrimination. The memorandum, entitled Revised Treatment of Transgender Employment Discrimination Claims, states that in pending and future cases, the DOJ will take the position that Title VII of the Civil Rights Act of 1964 does not provide protection against discrimination based on gender identity. Sessions concedes that some federal courts have interpreted the law differently, and advises his US Attorneys to preserve the issue for “further review” or appeal.
What does this mean for employers? Effectively, it shouldn’t mean much. A number of states, Massachusetts included, have laws in place protecting the rights of transgender employees. In addition, the US Equal Employment Opportunity Commission (EEOC), the federal agency actually charged with the responsibility to administer and enforce federal workplace anti-discrimination laws, takes the opposite view. Likewise, a number of state enforcement agencies have followed the EEOC position and interpretation. Employers, therefore, should make certain to know the laws in the states in which they do business and to be familiar with EEOC guidance on this point.
Businesses should always be mindful of how employees, applicants and customers are treated in their facilities. All individuals should be able to work and transact business free from discrimination. Civil and respectful behavior should be insisted upon, and employers should take action against any supervisor or employee who engages in discrimination or harassment of any kind. Failure to do could subject a company to any number of different causes of action. In addition to potential discrimination claims, employees could bring tort claims such as claims for intentional infliction of emotional address or assault and battery depending upon the gravity of the behavior at issue.
Finally, given the difficulty many employers face in hiring and retaining qualified employees in this age of low unemployment, it only makes sense to avoid being labeled as an intolerant and uncomfortable work environment.