In a memo issued last Wednesday, October 4, 2017, Attorney General Jeff Sessions announced that the Department of Justice will no longer take the position that Title VII of the Civil Rights Act of 1964 encompasses discrimination based on gender identity per se, including transgender status. This reverses the position of the DOJ that was announced by then-Attorney General Eric Holder in 2014 under the Obama Administration.
On December 15, 2014, General Holder announced this interpretation with a memo of his own, noting that the federal government’s view on this issue had evolved over time:
- In 2011, the Office of Personnel Management first issued guidance on the federal government’s workplace nondiscrimination policy that included discrimination based on gender identity;
- In 2012, the Equal Employment Opportunity Commission ruled that discrimination based on gender identity is sex-based discrimination; and
- In 2014, President Obama issued an Executive Order prohibiting discrimination based on gender identity for purpose of federal employment and government contract.
Considering this evolvement, General Holder looked back to the Supreme Court’s decision in Price Waterhouse v. Hopkins, where the Court found that a Title VII plaintiff needs to prove just “that the employer relied upon sex-based considerations in coming to its decision.” General Holder concluded “[i]t follows that, as a matter of plain meaning, Title VII’s prohibition against discrimination ‘because of…sex’ encompasses discrimination founded on sex-based consideration, including discrimination based on an employee’s transition to, or identifying as, a different sex altogether.”
In reversing this interpretation, General Sessions noted that this decision “is a conclusion of law, not policy.” General Sessions contrasted Title VII, which prohibits discrimination “because of…sex” but does not refer to gender identity, with other statutes where Congress did specifically list gender identity as a protected class (such as federal hate crime legislation and the Violence Against Women Act). This would show that Congress has the ability to specifically include gender identity protections when it wants to, and so these protections can not be included within a broader interpretation of sex-based protections. General Sessions concluded that the interpretation put forth by General Holder went beyond the scope of court precedent, and therefore determined that Title VII’s prohibition on sex discrimination encompasses discrimination between men and women, but does not encompass discrimination based on gender identity. General Sessions did note, however, the that DOJ “must and will continue to affirm the dignity of all people, including transgender individuals” and that this new interpretation “should not be construed to condone mistreatment on the basis of gender identity.”
Whichever is the correct interpretation of Title VII will ultimately be decided by the Supreme Court, and this answer could come sooner rather than later. As previously highlighted by this blog the Seventh Circuit just this year found that Title VII’s prohibition on sex discrimination encompassed discrimination based on sexual orientation, creating a split among the Circuit Courts. If this issue makes it to the Supreme Court, which it could as early as this current term, we would get a first look at how encompassing the prohibition on sex discrimination really is.
KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.
ADVERTISING MATERIAL.
© 2022 Keating Muething & Klekamp PLL. All Rights Reserved
- Associate
Greg Robinson’s practice is concentrated in the area of labor and employment law. He has counseled clients on a wide array of employment matters, including wage and hour disputes, discrimination charges, and issues involving ...
Topics/Tags
Select- Labor & Employment Law
- Coronavirus
- Employment Law
- Arbitration
- Religion Discrimination
- Labor Law
- Employee Benefits and Executive Compensation
- Discrimination
- Disability Discrimination
- Race Discrimination
- IRS
- OSHA
- Department of Labor
- NLRB
- Employer Policies
- Litigation
- Sexual Orientation Discrimination
- Americans with Disabilities Act
- Retirement
- Social Media
- Accommodation
- ERISA
- National Labor Relations Act
- National Labor Relations Board
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- ACA
- Affordable Car Act
- Wage & Hour
- EEOC
- NLRA
- ADAAA
- Title VII
- Federal Arbitration Act
- Unions
- Employer Rules
- Sexual Harassment
- 401(k)
- Technology
- Privacy
- Transgender Issues
- Workplace Accommodations
- FMLA
- Employment Settlement Agreements
- Disability
- Workplace Violence
- Paycheck Protection Program
- Sixth Circuit
- Fair Labor Standards Act
- Equal Employment Opportunity Commission
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- Benefits
- E-Discovery
- Evidence
- Overtime Pay
- Family and Medical Leave Act
- Representative Election Regulations
- Environmental Law
- Privacy Laws
- Department of Justice
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Telecommuting
- Affirmative Action
- Electronically Stored Information
- Equal Opportunity Clause
- Compensable Time
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- Attendance Policy
- Return to Work
- Seniority Rights
- American Medical Association
- Classification
- Fair Minimum Wage
- Federal Minimum Wage
- Misclassification
- State Minimum Wage
- Wage Increase
- Confidentiality
- Disability Leave
- Equal Pay
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Retaliation
- Social Media Content
- Taxation
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
Recent Posts
- The Practical Employment Law Podcast: Labor & Employment Update Week of 5/30/22
- The Practical Employment Law Podcast: The Future of Arbitration
- The Practical Employment Law Podcast: The Gig Economy
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 3/7/2022
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 2/7/2022
- Supreme Court Re-Implements Stay of Vaccine Mandate for Employers, Upholds CMS Mandate
- The Practical Employment Law Podcast: Twelve Thoughts About Vaccine Mandates
- Update on Status of Federal Contractor Mandate and OSHA’s ETS
- The Practical Employment Law Podcast: Employment Law Advice from Ebenezer Scrooge
- Update on Status of All Federal Vaccine Mandates