You may have read that the current Department of Justice has reversed the government’s standing on protection against discrimination for transgender employees. Well, they did and they didn’t. Let’s take a look at what happened.
Attorney General Jeff Sessions wrote a memo, on October 4, 2017, to all U.S. Attorneys and the heads of government agencies explaining that he was reversing the position expressed by Eric Holder under the Obama Administration. According to the National Law Review “The Oct. 4 memo rejects the Obama administration’s interpretation that transgender workers, or gender identity, is protected under Title VII of the Civil Rights Act of 1964.” The National Law Review says further:
“The Justice Department said in its memo: ‘Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity, per se. This is a conclusion of law, not policy.’
It notes that while Title VII does protect against ‘sex’ as a form of discrimination, it does not refer to gender identity and it should be limited to ‘biologically male or female.’ It goes on to say that the government will take this position in pending and future matters.”
Unfortunately, this puts the government in conflict with itself.
The EEOC takes a different point of view
During the Obama administration, the EEOC had taken a more liberal view of the protections under Title VII. They said then that transgender protections were included under “sex discrimination”, although they admitted that the law did not specifically say that. Under the Trump administration, the interpretation is that since the law did not specifically include transgender protections, and Congress has not moved to amend the law, then transgender protections should not be seen as the law. This has put the DOJ in conflict with the EEOC in at least one lawsuit, and possibly others.
This is not open season on transgender employees
Attorney Richard Meneghello of Fisher Phillips says that employers have to beware of seeing this as an opportunity to take action against transgender employees. He reminds us that there are differing opinions in the federal court system, depending on the Circuit in which you are located. Additionally, a number of states and cities have also passed their own laws offering discrimination protection to transgender employees. He says “Employers that rely on the Sessions memorandum and ignore these laws and court decisions could find themselves on the wrong end of a costly employment discrimination judgment.”
In my opinion until the courts and the various departments of government sort this out, employers are better off determining the treatment of employees on the basis of the quality and quantity of their work rather than whether or not they are included in an officially protected category.