UPDATE: SEX-STEREOTYPING AND TITLE VII

THE DEPARTMENT OF JUSTICE WEIGHS IN

Following our recent blog post describing the EEOC’s interpretation of Title VII in the context of sexual orientation discrimination, another Federal agency has issued a policy statement that would seem to expand upon the EEOC’s position. The Department of Justice issued a memo on December 15, 2014 stating that the DoJ now reads Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination “based on gender identity, including transgender status.”

Attorney General Eric Holder writes in the memo (PDF):

After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination “because of … sex” includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using “the simple words ‘because of,’ … Congress meant to obligate” a Title VII plaintiff to prove only “that the employer relied upon sex-based considerations in coming to its decision.” 490 U.S. at 241-242. It follows that, as a matter of plain meaning, Title VII’ s prohibition against discrimination “because of … sex” encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).

The Attorney General’s statement, following the EEOC’s recent policy change, is another welcomed representation of the sea change taking place in the American political realm regarding the civil rights of the LGBT community.

The DoJ’s position has not yet been tested in any case appearing before the Supreme Court of the United States, so it remains to be determined if this policy will create a lasting, tangible change in employment discrimination cases. However, the fast-paced evolution of the Federal government’s position towards LGBT rights suggests that progress in this arena is not only attainable, but is occurring rapidly in a highly significant manner.

We’ll keep you updated as this situation further develops.

H/t: Workplace Prof Blog.

If you feel that you have been discriminated against by your employer for your gender identity or sexual orientation, you should seek the assistance of counsel immediately to discuss the legal remedies available to you.

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