By Laura J. Maechtlen and Craig B. Simonsen
Attorney General Holder announced this week that the U.S. Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.
In a memorandum released by the U.S. Department of Justice, “Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964,” Attorney General Holder concludes that “after considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”
In the memo, Holder informed all Department of Justice Component Heads and United States Attorneys that the Department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination. In doing so, Holder reverses a previous Department of Justice position on this topic.
The memo clarifies the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. Note, however, that the Department of Justice does not have authority to file suit against private employers. Nevertheless, as our loyal readers know, various legal protections exist for employees in the private sector, including for employees of government contractors (see our recent post related to developments impacting federal contractors here and here).
The following graphics provide an abbreviated glance at two U.S. maps that provide detail on states in which there are nondiscrimination laws to protect people based on sexual orientation and gender identity, and those states that recognize leave of absence rights for employees. Please see the full infographic for the full sized maps, and other related detailed charts.
In response, employers, especially those with facilities and branches in these highlighted states, will be well served to ensure that their policies, procedures, and processes are updated to ensure no differential treatment based on sexual orientation and gender identity/expression.