Is Gender Identity a Protected Class?

The Obama era Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) would have said, “YES.”  Yesterday, the Trump Administration’s DOJ answered that question with a “NO,” reversing the federal government’s stance regarding whether gender identity is a protected class under Title VII of the Civil Rights Act of 1964 (Title VII).

Attorney General Jeff Sessions communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status.  The letter reverses a position taken by former Attorney General Eric Holder in December 2014.  Attorney General Sessions wrote, “This is a conclusion of law, not policy” and “the Department of Justice must interpret Title VII as written by Congress.”

The DOJ’s revised position on gender identity is in direct conflict with the positon taken by the EEOC.  Currently, the EEOC considers discrimination against an individual because of gender identity, including transgender status and sexual orientation, a violation of Title VII.

Despite this change in position by the federal government, many state and local governments have enacted legislation that recognizes sexual orientation, gender identity, and transgender status as protected classes.  Employers should continue to monitor the issue on the federal level, but also consult these state and local resources with a view to update their policies and procedures related to equal employment opportunities.

Betsy Davis

About: Betsy Davis

Betsy focuses on advising management in all areas of labor and employment law. She regularly represents employers in state and federal courts in the areas of discrimination, fair labor standards, family and medical leave, wrongful discharge, covenants not to compete, breaches of employment contracts, as well as other state and federal employment issues. She counsels and represents clients in defense of EEOC charges and DOL investigations. View all posts by Betsy Davis
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