On October 4, 2017, Attorney General Jeff Sessions announced that under his interpretation of Title VII, gender identity and transgender status are not protected. According to Attorney General Sessions, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The phrasing causes some pause, given that, in 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII also applies to harassment between members of the same gender.

The Justice Department recently made the same argument with respect to sexual orientation at oral argument before the Second Circuit in Zarda v. Altitude Express. This is a significant departure from the Obama Administration as well as the current position of the Equal Employment Opportunity Commission, which interprets Title VII to prohibit such discrimination. While this topic continues to be debated, employers may be struggling to confirm they are in compliance with the ever-evolving legislation.

Background

Title VII of the Civil Rights Act of 1964, prohibits, in relevant part, discrimination and harassment “because of […] sex.” Title VII does not, however, explicitly prohibit discrimination based on sexual orientation, gender identity, transgender status, or gender expression. Until recently, Circuit Courts of Appeal unanimously interpreted the term “sex” to mean biological sex, and held Title VII does not prohibit discrimination based on sexual orientation.

The changes began under the Obama Administration. In December 2014, former Attorney General Eric Holder issued a memorandum in which he concluded that the term “sex” is not limited to biological sex and that Title VII prohibits discrimination on the basis of gender identity. Shortly after, in June 2015, the EEOC held in Baldwin v. Foxx that the term “sex” in Title VII also includes a prohibition against sexual orientation discrimination in the federal sector. A string of litigation followed urging the courts to more clearly define the term “sex” in Title VII as well as Title IX in the context of students.  In early 2017, in Hively v. Ivy Tech Comm. College and Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., the Seventh Circuit became the first to hold that “sex” encompasses sexual orientation and gender identity/transgender status under Title VII and Title IX, respectively.

What Does This Mean, In General?

Attorney General Session’s memorandum directs United States Attorneys to refrain from pursuing matters involving transgender worker rights. This may cause an interesting shift in pending cases, since this interpretation of Title VII reverses the Justice Department’s position and is at odds with the EEOC’s present stance. However, federal courts are not bound to defer to the Justice Department’s new position on Title VII.

Until the courts determine the proper interpretation of “sex” in Title VII, workers alleging discrimination or harassment on the basis of gender identity or expression will find the federal government fractured on this issue, with the EEOC viewing such discrimination as a violation of Title VII and the Justice Department in disagreement.

What Does This Mean For An Employer In California?

Attorney General Session’s proclamation will really have no effect on employers in states that have their own restrictions on employment discrimination based on gender identity.

If a state and federal law conflict, the law that is most protective of the employee applies. In this situation, the federal law is Title VII and the state law is the Fair Employment and Housing Act (“FEHA”). Gender identity and gender expression are enumerated protected categories under FEHA. (See Cal. Govt. Code §§ 12920, 12921, 12926(r)(2).) Discrimination based on gender identity and gender expression is prohibited based on refusal to hire, demotion, failure to promote, termination, denial of training; compensation, terms, conditions, and privileges of employment; harassment and retaliation. (Cal. Govt. Code §§ 12940(a)-(d), (j).)

California defines gender expression, gender identity, sex, sex stereotype, transgender, and transitioning. For example, “gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth while “gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender. (See Cal. Code of Regulations § 11030.) It is important for an employer to be familiar with these terms in order to effectively comply with the various laws.

New protections have been extended in 2017. For instance, employee choice of name and pronoun preference now prevails unless otherwise mandated by law. For instance, when it comes to business cards (as opposed to something like IRS documentation), an employer may be liable for failing to use the appropriate name or pronoun. In addition, employers should not make inquiries that directly or indirectly identify an individual on the basis of sex, gender, gender identity, or gender expression, with the exception that an employer may make an inquiry to ensure facilities are accessible, safe, and adequate. Furthermore, employers must allow employees to use the restroom, locker room, dressing room, etc. that corresponds to the employee’s gender expression or identity without any analysis as to “reasonableness.”

Dress codes or grooming standards are appropriate so long as they are enforced non-discriminatorily. (Govt. Code. § 12949.) For instance, transgender persons must be allowed to comply with grooming standards corresponding with their gender identity and cannot be held to a stricter standard of compliance.

Some Best Practices:

• Have a plan in place to address name and pronoun change requests
• Make sure employment applications don’t contain a “gender box,” which necessarily discloses information on sex, gender, gender identity, or gender expression
• Provide access to safe and adequate facilities that are not unreasonably difficult to access
• Confirm you have effective manager and employee training
• Confirm you have “open door” policies and effective complaint procedures

A Few Good Resources:

DFEH Guidance on Transgender Rights in the Workplace

Transgender Law Center: Model Workplace Employment Policy

OSHA Guide to Restroom Access for Transgender Workers

In addition, it is wise to consult with an experienced attorney to review your policies and procedures, employment applications and manuals and assist in confirming appropriate training is being conducted.