On October 4, 2017, U.S. Attorney General Jeff Sessions issued a memorandum advising that the U.S. Department of Justice will no longer take the position that Title VII (the law which prohibits discrimination based on sex, race, color, national origin, and religion) prohibits discrimination based on “gender identity per se, including transgender status.”
What does this mean for employers?
The Attorney General’s memo does not change the law or overrule any court decision on this issue. Instead the memo only sets out the DOJ’s position on this issue.
The impact on private sector employers may be minimal. The DOJ generally is not very involved in the investigation and prosecution of workplace discrimination claims by employees unless it is a public employer. Further, the DOJ’s involvement in private employer discrimination claims is normally limited to the submission of an amicus (friend of the court) brief on important issues. We expect that if the issue whether Title VII covers gender identity or transgender status reaches the Supreme Court, the DOJ would file an amicus brief opposing such an interpretation.
Most importantly for employers, the memo does not normally bind the Equal Opportunity Employment Commission which has primary authority for investigating and prosecuting employment discrimination claims. For now, the EEOC appears to be staying the course on its policy to investigate and prosecute claims of gender identity or transgender discrimination.
The memo also does not override those county and city ordinances in Florida which explicitly prohibit discrimination based on gender identity including transgender status.
Best Practices Going Forward:
Employers should continue to maintain strong non-discrimination policies and investigate any complaint of harassment or discrimination by their employees including claims of gender identity or transgender discrimination.