U.S. Justice Department Reverses Position on Gender Identity Discrimination Claims in New York and Nationwide

Department of JusticeThe past year has brought considerable uncertainty in many aspects of employment discrimination law, as the new administration in the White House rolls back measures enacted by the previous administration. Protections against gender identity discrimination under federal statutes like Title VII of the Civil Rights Act of 1964 have received particular attention. The statute prohibits employment discrimination on the basis of sex and other factors. New York City employment discrimination law expressly includes gender identity and expression. At the federal level, however, the protection is based largely on inferences from the statutory text. The Equal Employment Opportunity Commission (EEOC) has ruled that Title VII’s prohibition on sex discrimination encompasses discrimination based on gender identity and gender expression, but the Department of Justice (DOJ) now takes the opposite position. A memorandum issued by the Attorney General (AG) in October 2017 overrules a 2014 memorandum from the previous occupant of that office.

Title VII prohibits a range of discriminatory acts by employers against an employee “because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1). The EEOC has concluded that this includes “gender discrimination, and not just discrimination on the basis of biological sex.” Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The agency found that Title VII allows claims for “discrimination based on gender identity, change of sex, and/or transgender status.” Id. Laws at the state and municipal levels around the country include express provisions addressing these factors, often encompassed by the terms “gender,” “gender identity,” and “gender expression.” See, e.g., N.Y.C. Admin. Code § 8-102(23).

In December 2014, the DOJ issued a memorandum addressing gender identity claims under Title VII. The memorandum does not quite endorse the view that Title VII sex discrimination includes gender identity and expression. Instead, it states that the DOJ will not argue against allowing such claims under Title VII. The overall effect was probably about the same, if not as satisfying as a full endorsement. The memorandum discusses how past court rulings support the inclusion of gender identity and expression, noting the U.S. Supreme Court’s ruling on a claim of discrimination by “sex stereotyping” in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). After a federal court in Washington, D.C. ruled in favor of a worker’s gender identity discrimination claim, Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), several federal agencies began recognizing gender identity discrimination as sex discrimination.

A memorandum issued by the current AG on October 4, 2017 expressly overrules the 2014 memorandum. It also reviews existing law, including Price Waterhouse, but focuses on a ruling that affirms the dismissal of a transgender woman’s Title VII claim for gender identity discrimination, Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007). It also cites a dissenting opinion from an appellate decision in which the majority ruled that Title VII covers sexual orientation discrimination claims. The portion of the dissent cited by the memorandum involves a citation to the dictionary definition of “sex.” Hively v. Ivy Tech Cmy. Coll., 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting).

If you have a question about unlawful workplace practices like gender identity discrimination in New York City, contact the gender identity discrimination lawyers at Phillips & Associates today, online or at (212) 248-7431, to schedule a free and confidential consultation.

More Blog Posts:

Lawsuit Uses Theory of Employment Discrimination Based on Sex to Assert Claim for Gender Identity Discrimination, New York Employment Attorney Blog, October 13, 2017

Understanding Recent Federal Actions on Gender Identity Discrimination in Employment, New York Employment Attorney Blog, August 22, 2017

U.S. Supreme Court Sends Gender Identity Discrimination Case Back to Appellate Court, New York Employment Attorney Blog, August 18, 2017

Photo credit: Baseball Watcher (Own work) [CC BY-SA 3.0 or GFDL], via Wikimedia Commons.

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