General Services Administration Issues New Regulation Regarding Transgender Rights in the Workplace

transgender flagNo federal statute expressly protects workers from discrimination in employment on the basis of gender identity. Over the past several years, however, the Obama administration and several federal agencies have recognized protections against discrimination for transgender workers. This began with a ruling by the Equal Employment Opportunity Commission (EEOC), which found that gender identity discrimination may be considered sex discrimination under Title VII of the Civil Rights Act of 1964. Next came an executive order prohibiting gender identity discrimination in federal employment, as well as a memorandum from the Department of Justice (DOJ) and a new set of rules from the General Services Administration (GSA). These advances may be short-lived, with a new administration set to take over in January 2017, but they are worth reviewing.

Title VII prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a). The EEOC has found that this includes gender identity discrimination. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 12, 2012). In a later case, the agency ruled that Title VII requires employers to allow employees access to common restrooms matching their gender identity, and providing a single-user restroom specifically for transgender employees does not satisfy this requirement. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, (Mar. 27, 2015). It further held that an employer cannot, as a condition of granting these rights, require a transgender employee to provide proof of any medical procedure related to gender transitioning. These rulings apply to EEOC proceedings but are not necessarily binding on federal courts.

In July 2014, President Obama signed Executive Order 13672, which extended employment discrimination protection to transgender employees of the federal government and government contractors. The order amended two earlier executive orders. Executive Order 11246, issued by President Lyndon B. Johnson, prohibited employment discrimination within the federal government and by federal contractors based on Title VII categories. The Nixon administration amended this order with Executive Order 11478. Additional amendments added sexual orientation as a protected category, and this most recent order added gender identity.

The DOJ issued a memo in December 2014, stating the department’s position that Title VII covers gender identity discrimination claims as a form of sex discrimination. It based this position in part on a Supreme Court decision finding that “sex stereotyping” can be a form of unlawful sex discrimination under Title VII:  “[w]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group…” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).

The GSA published a rule in August 2016 regarding gender identity discrimination in its facilities. 81 Fed. Reg. 55148 (Aug. 18, 2016). It applies to all federal agencies that use space under the GSA’s jurisdiction, and it provides the types of protections addressed in the EEOC’s Macy and Lusardi decisions, including bathroom access.

Phillips & Associates’ transgender discrimination attorneys advocate for the rights of employees, former employees, and job applicants in New York City, helping them assert claims for unlawful workplace practices like gender and gender identity discrimination. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with a member of our experienced and skilled legal team.

More Blog Posts:

Lawsuit Alleges Gender Identity Discrimination Under New York City and State Laws, New York Employment Attorney Blog, June 8, 2016

Appellate Court Rules that Federal Antidiscrimination Law Applies to Gender Identity and Expression, New York Employment Attorney Blog, May 20, 2016

How New York City’s New Gender Identity Discrimination Guidelines Affect Restrooms in the Workplace, New York Employment Attorney Blog, February 10, 2016

Photo credit: torbakhopper [CC BY-ND 2.0], via Flickr.

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