On December 15, 2014, U.S. Attorney General Eric Holder issued a Memorandum that it is the position of the Department of Justice (DOJ) that Title VII’s prohibition against sex discrimination includes discrimination based on gender identity, including transgender status. This is an about-face from the DOJ’s stated position in 2006 that Title VII’s prohibition on sex discrimination did not include discrimination based on gender identity or transgender status.
Mr. Holder explained that the positions of both the federal government and courts have evolved regarding these issues, warranting a change in the DOJ’s position. This is in line with recent rulings from the Office of Personnel Management and the EEOC, as well as President Obama’s Executive Order of July 21, 2014 prohibiting federal contractors form discriminating against employees and applicants based upon their gender identity and sexual orientation.
The DOJ’s position will primarily impact government employers in that it cannot file suits against private employers. However, this change in position affirms the Obama administration’s position on this issue. This may impact federal courts ruling on gender identity and transgender status discrimination claims as well as encourage states to implement their own laws including gender identity and transgender status as protected classes. Employers should consider revising their anti-discrimination policies to include gender identity and transgender status. It would also be prudent, however, to ensure that such policies contain language that they do not create or give rise to rights or privileges upon which an employee could bring suit other than those that already exist in law.