Coalition of States Attempt To Block Obama Directive Banning Gender Identity Discrimination

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06/27/2017

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Coalition of States Attempt To Block Obama Directive Banning Gender Identity Discrimination

By: Carl Larson

Gender identity discrimination in employment may soon become unlawful, or at least that is what the ten states moving to block an Obama directive think. President Obama issued a directive recently which changes the interpretation of sex discrimination to also include gender identity discrimination. Currently, the directive only applies to the educational sector through Title IX, an anti-discrimination law governing most schools and colleges. Although the directive is supposedly aimed at protecting transgender students, as written the directive also applies to school employees. Employers are concerned that this may be a road map for changes which may soon apply to Title VII which governs private employers. The ten states’ suit in Nebraska is accompanied by 13 other states currently suing to block the same directive in a Texas federal court. 

With the exception of federal contractors and subcontractors, existing Federal law does not explicitly protect private sector employees from discrimination based on gender identity. However, the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing federal anti-discrimination laws, has taken an increasingly aggressive stance to protect transgender employees from discrimination. Because there is no explicit protection for gender identity, the EEOC has had to rely on cases which recognize that sex discrimination can occur based on non-conformance with sex stereotypes. That is to say, those cases have held that it is unlawful to discriminate against an employee because their actions or appearance do not match those that are typically associated with being male or female. In other words, employers cannot terminate male employees for being too effeminate or women for being too masculine.

The EEOC’s backdoor method of protecting transgender individuals has gotten a great deal of traction in the federal courts. Some remain skeptical of these efforts to essentially rewrite the law to protect a group of individuals the law was never intended to protect. This is essentially the basis of the lawsuits currently pending in Nebraska and Texas.  In other words, Title IX as written does not protect against discrimination based on gender identity and was never intended to protect transgender individuals.  

The Supreme Court has yet to weigh in on this theory of discrimination, but it is unlikely to do so while a seat on the bench remains vacant. The proper method of changing the law, the coalition of states argues, would be for Congress to amend the law.

COUNSEL TO MANAGEMENT:

While Titles VII and IX do not explicitly protect gender identity, in light of the changing legal landscape and the EEOC’s continuing aggressive stance on this issue, employers who fail to take heed of the possibility of lawsuits alleging gender identity discrimination are playing a very dangerous game. Further, many states, including California, have passed laws that specifically protect employees against gender identity discrimination. Even very small employers should be wary of gender identity discrimination claims being brought as common law hostile work environment claims which set a low employee number threshold.   The Saqui Law Group provides expert guidance to employers in Equal Employment Opportunity law and regularly defends large and small businesses against lawsuits and administrative investigations brought by the EEOC and California Department of Fair Employment and Housing. If you are facing harassment or discrimination claims based on gender identity or any other protected basis, contact the Saqui Law Group for help.

 

 
 

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