Even if you’re not a state or local public employer, you still might want to make note of the following news out of the Justice Department yesterday.
In a memo to the DOJ’s component heads and United States Attorneys, Attorney General Eric Holder said the DOJ is now taking the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status, thereby clarifying the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. Put another way, it will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.
According to Holder …
“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status. This will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”
As most of you already know, the move follows a final rule released by the Department of Labor earlier this month that implements President Obama’s July 21 Executive Order 13672 prohibiting federal contractors and subcontractors from discriminating in employment practices on the bases of gender identity and sexual orientation.
As might be expected, Mara Keisling, executive director of the National Center for Transgender Equality, told the Associated Press she welcomed the news. But she also noted that, rather than breaking new ground, “it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012.”
Earlier today, I asked Thomas B. Lewis, shareholder in the Princeton, N.J., office of law firm Stevens and Lee, to share his thoughts on the move.
Lewis suggested private employers should pay attention to this, because the “natural progression” will be for these protections to be applied to the private sector.
“These protections already [exist now in some states, such as New Jersey] and I think it’s only natural that other states will follow suit with expanding discrimination protections involving transgender individuals,” he said.
“So if you’re a private-sector employer,” he added, “you have to look at this with an eye toward following the directives of the federal government and stopping any form of discrimination based on somebody’s gender identity and orientation, because it’s not healthy for the workplace environment.”Twitter It!