U.S. Attorney General Jeff Sessions issued a memo to all U.S. Attorneys revising how the Department of Justice will address gender identity claims under Title VII. In 2014, the Obama Administration DOJ stated that gender identity discrimination, including that against transgender individuals, was illegal under Title VII’s prohibition against sex discrimination. AG Sessions’ memo reversed that practice, concluding instead that federal law does not prohibit discrimination based on gender identity, per se.
What does “per se” mean?
As outlined in the memo, issued on Wednesday, October 4, 2017, the DOJ has decided to look strictly at the words of Title VII. While the statute prohibits discrimination “because of . . . sex,” the AG notes that it does not specifically refer to or protect “gender identity.” The AG’s memo does recognize that the Supreme Court bars “sex stereotypes” where they cause disparate treatment of men and women. However, the AG does not believe that the language of Title VII prohibits employment practices that take account of the sex of employees, but do not impose different burdens on similarly situated members of each sex. For example, the AG points out that Title VII would not cover claims based on sex-specific bathrooms. As such, the critical issue is whether members of one sex are exposed to adverse terms or conditions of employment that are not placed upon members of the other sex.
The memo states that the DOJ will continue to affirm “the dignity of all people, including transgender individuals” and does not condone the mistreatment of people based on gender identity.
How will this affect employers?
If your business is one of the rare ones that has been the subject of a DOJ investigation based on claims of gender identity discrimination—that should end. However, it is unclear how this will affect the more common way that the government enforces employment discrimination laws—through the EEOC, an agency that is not under the DOJ. We have already seen one instance this year in a Second Circuit case in which the EEOC has taken the position that sexual orientation is covered by Title VII while the DOJ is arguing that it is not.
Most importantly, as the AG memo acknowledges, the Supreme Court has recognized that gender stereotyping, which is usually a large part of any transgender or gender identity claim, is still illegal.