Attorney General Jeff Sessions recently advised United States Attorneys across the country that the Department of Justice (DOJ) is reversing its prior position that Title VII of the Civil Rights Act of 1964 – which prohibits gender discrimination in the workplace, among other things – protects transgender workers from discrimination. This is a significant change from the position of the Obama Administration and the Equal Employment Opportunity Commission (EEOC), both of which interpreted Title VII to prohibit such discrimination. According to a current DOJ spokesperson, Session’s memorandum was issued in order to align the DOJ with the law as written by Congress.
In his memorandum, Attorney General Sessions wrote that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” He also instructed that “the Department of Justice must interpret Title VII as written by Congress.” He further directed that, while other statutes do so, Title VII does not expressly prohibit gender identity discrimination, and Congress has chosen not to amend the language. Thus, according to Attorney General Sessions, Congress did not ever and does not now intend for gender identity discrimination to be prohibited by Title VII. Attorney General Sessions directed the DOJ to take this position going forward, except in cases where lower-court controlling precedent dictates otherwise, in which case the issue is to be preserved for potential review.
The memorandum issued by Sessions is not all that surprising given the actions taken by the Trump administration earlier this year. In February 2017, the Departments of Justice and Education jointly issued a memorandum undoing Obama-era guidance requiring all public schools to allow transgender students to use the bathroom corresponding to their gender identity, pursuant to Title IX. In July 2017, President Trump tweeted that the U.S. military would no longer accept or allow transgender individuals to serve “in any capacity.” And during that same month, the Justice Department filed an amicus brief with the Second Circuit in Zarda v. Altitude Express, encouraging the Second Circuit to ignore the position of the EEOC asserting that Title VII does not include protection against discrimination based on sexual orientation.
What does this mean for employers?
To be sure, the DOJ is not charged with enforcing Title VII as to private employers and Sessions’ memorandum does not change the law or overrule any court decision on this issue. However, the DOJ does prosecute workplace discrimination claims by public employees. It also has the ability to participate in private employer litigation through the submission of amicus (friend of the court) briefs on significant issues. Thus, the DOJ’s activities have the potential to move the courts toward an interpretation of Title VII that excludes transgender status and gender identity from its protections. This creates a potential philosophical and advocacy conflict between the DOJ and the EEOC, which holds the opposite view. Given these disparate views within the same federal government, employers should closely follow developments in this area.
Going forward, employers should proceed with caution in relying upon Attorney General Sessions’ memorandum in determining the scope of their anti-discrimination policies. There is no risk in having policies that assume gender identity or even sexual orientation discrimination is covered under Title VII, but there is legal risk in assuming they are not covered.
Note also that the DOJ’s current position should have no effect on employers in states (or cities) that have their own prohibitions against employment discrimination based on transgender status or gender identity; those laws must still be followed. In addition, covered federal (sub)contractors are still prohibited by executive order from discriminating against persons on the basis of their sexual orientation or gender identity. Those executive orders remain in effect notwithstanding the DOJ’s contrary interpretation of Title VII.