DOJ Broadens Its Definition of Sex Discrimination To Include Discrimination Based On Gender Identity/Transgender Status
By R. Read Gignilliat
December 29, 2014
On December 18, 2014, U.S. Attorney General Eric Holder announced the Justice Department's official position that the prohibition on sex discrimination provided by Title VII of the Civil Rights Act of 1964 extends to gender identity, including transgender employees and applicants. The DOJ's new position on the issue of gender identity/transgender status directly affects state and local government employers, as Title VII grants enforcement authority to the DOJ over such employers. While this announcement reversed the position previously taken by the DOJ, Holder explained that "[t]he federal government's approach to this issue has evolved over time."
Neither Title VII nor any other federal employment law explicitly prohibits employment discrimination based on sexual orientation or gender identity, and efforts to amend Title VII to add such prohibitions through proposed legislation such as the Employment Non-Discrimination Act (ENDA) have been unsuccessful for two decades. Nevertheless, when the EEOC released its Strategic Enforcement Plan for FY 2013-2016, it announced its intention to prioritize certain emerging and developing issues, including "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply."
While viewed by some as another example of the administration's propensity to pursue legislative change thorough executive action, the EEOC appears to be on solid legal footing. While generally not extending protected status to sexual orientation alone, a series of relatively-recent court decisions, including the Eleventh Circuit's decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), support the conclusion that discrimination against employees or applicants for employment based on gender identity or because they are "gender nonconforming" (which would include discrimination against gay men perceived as feminine and lesbians perceived as masculine, as well as straight individuals who do not fit gender norms) is a form of sex discrimination prohibited by Title VII.
The announcement by the DOJ is also in line with a Final Rule announced earlier this month by the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) prohibiting discrimination based on sexual orientation and gender identity by federal contractors and sub-contractors, in accordance with an executive order issued by President Obama in July 2014.
The extent to which the DOJ now views Title VII to be applicable to sexual orientation (as distinguished from gender identity and transgender status) is unclear. Sexual orientation is not referenced in the announcement. Moreover, in Terveer v. Billington, an employment discrimination case presently pending in the U.S. District Court for the District of Columbia, the U.S. Attorney's Office has argued that "Title VII does not provide a remedy for claims of discrimination based on sexual orientation standing alone" and that a viable claim based on "failure to conform to gender stereotypes" therefore cannot be based solely on an employee's sexual orientation. The DOJ has already received multiple inquiries requesting clarification on this issue.
As noted above, the DOJ's new position has a direct and immediate impact on state and local government employers. For this reason, and in view of the EEOC's previously announced enforcement priorities and the clear trends reflected in recent court decisions, cities, counties, and other local government employers are advised to ensure that their workplace harassment and EEO policies extend coverage to employees and applicants on the basis of sexual orientation, gender identity, and transgender status and that their employees receive appropriate training regarding their rights and obligations thereunder.