LeClairRyan’s Betsy Davis outlines options for employers, as Trump administration stance may spur state-federal conflict

Richmond, VA (October 23, 2017) — The Trump Administration’s Department of Justice (DOJ) recently announced it no longer considers gender identity to be a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). This could squeeze business owners if there’s a conflict between state and federal gender identity discrimination laws, and further potential conflicts between the EEOC and the DOJ, warns Betsy Davis, a shareholder in national law firm LeClairRyan’s Richmond office. But she offers some advice on navigating these rocky issues.

During the Obama administration’s two terms, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) considered gender identity as a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). But Attorney General Jeff Sessions “communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status,” Davis reports in a recent blog, Is Gender Identity a Protected Class? Her post appears in the firm’s LR Workplace Defender blog, which focuses on employment litigation issues.

In his letter, AG Sessions wrote, “This is a conclusion of law, not policy” and “the Department of Justice must interpret Title VII as written by Congress,” reversing a December 2014 position taken by former Attorney General Eric Holder.

“The DOJ’s revised position on gender identity is in direct conflict with the position taken by the EEOC,” Davis observes. “Currently, the EEOC considers discrimination against an individual because of gender identity, including transgender status and sexual orientation, a violation of Title VII.”

Sessions’ stance may also collide with the many state and local governments that have enacted legislation establishing sexual orientation, gender identity, and transgender status as protected classes. “Employers should continue to monitor the issue on the federal level, but also consult state and local resources with a view to update their policies and procedures related to equal employment opportunities,” counsels Davis.

A Seventh Circuit Court decision, Hively, is consistent with the EEOC position that Title VII’s prohibition on sex discrimination forbids employment discrimination on the basis of sexual orientation or gender identity. “But other Circuits, including the Fourth Circuit, have ruled that gender identity is not a protected class under Title VII” she notes. “Because Hively creates a circuit split, the U.S. Supreme Court may be interested in deciding the issue if an appropriate case is appealed. In the meantime, treat all employees equally and fairly, since it’s the right thing to do and prevents claims.”

Also, Davis continues, if a company’s employees work in a state or locality that protects sexual orientation and gender identity, the employer should update its handbook and policies to ensure that managers and employees understand that these characteristics may not be considered when making hiring decisions, addressing on-the-job situations, and/or responding to complaints involving sexual orientation, gender identity, or transgender identity.

“In fact, many multi-state employers have made the decision to update policies to include a prohibition against discrimination or harassment on the basis of gender identity for all employees, even those who work in federal and state jurisdictions that have found gender identity is not a protected class,” Davis adds. “Keep abreast of the ongoing and latest developments and changes in the law at the federal, state, and local levels, and ensure that existing policies comply.”

Government contractors in particular may wish to examine their handbooks and contract documents in light of Executive Order 13672 that was issued by President Obama. “This EO required all government contracts and subcontracts in excess of $10,000 to list ‘sexual orientation and gender identity’ whenever they explicitly list protected classes,” she explains. “In January of this year, the Trump administration released a statement indicating that President Trump intends to continue enforcing the prohibition against government contractors and subcontractors discriminating based on sexual orientation and gender identity.”

“Employers who do face a claim alleging sexual orientation and/or gender identity discrimination should be sure to know which laws apply, and immediately consult with their legal counsel,” Davis concludes. 

About LeClairRyan

As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices from coast to coast, the firm represents a wide variety of clients nationwide. For more information about LeClairRyan, visit www.leclairryan.com.

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