National Association of Government Contractors


Contractors: Gender Identity Discrimination Prohibited

Many employers are still confused as to how General Jeff Sessions' recent memo on religious freedoms can be reconciled with Title VII prohibitions of discrimination based on gender identity. While, the Department of Justice has been instructed to take the position that Title VII does not bar gender identity discrimination, the EEOC still takes the position that it does.

Sessions' October 4th memo to all United States Attorneys and heads of DOJ effectively reversed the Obama administration's position on this issue. Sessions firmly announced in his memo that "Title VII does not prohibit discrimination based on gender identity." 

He added that "[t]his is conclusion of law, not policy."  As such, Sessions affirmed that the DOJ will now take the position that Title VII does not encompass discrimination based on gender identity "in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review)."

However, Sessions emphasized that the DOJ "must and will continue to affirm the dignity of all people, including transgender individuals," and cautions that his memo should not be "construed to condone mistreatment on the basis of gender identity."

As employers are well aware, Sessions' announcement runs contrary to the position taken by the EEOC since 2015, when the EEOC expressly held that sexual orientation discrimination is discrimination based on sex and therefore is barred by Title VII.

Indeed, even though all but one of the federal circuit courts considering this issue have disagreed with the EEOC and have held, consistent with Sessions' announcement, that sexual orientation discrimination is not actionable under Title VII, the EEOC continues to process discrimination charges and bring cases based on that interpretation. The agency regularly tracks and maintains a list of ongoing cases seeking to protect LGBT workers in the private workforce.

As employers wait for clarity on the issue, they are wise to proceed with caution.  It is important to note that, setting aside federal protections for employees, more than 20 states and dozens of local governments have laws, which expressly prohibit discrimination based on gender identity or sexual orientation.  In addition, federal contractors and sub-contractors are still covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the Department of Labor's Office of Federal Contract Compliance.



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