LGBTQ workplace rights is perhaps the most rapidly evolving area in employment law. On October 4, 2017, United States Attorney General Jeff Sessions formally weighed in on the topic. He issued a memorandum to all federal prosecutors declaring that Title VII of the Civil Rights Act of 1964 does not prohibit employment discrimination based on transgender status. According to the memo, “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.”
So, does the Attorney General’s memo mean that employers can freely discriminate on the basis of gender identity? Not exactly. A number of federal courts have held that employment bias based on an individual’s transgender status is a form of unlawful sex discrimination under Title VII (the United States Courts of Appeals for the First, Sixth, and Eleventh Circuits have all issued such rulings, as have several federal district courts). Attorney General Sessions’ memo certainly does not preempt these rulings. Additionally, the Equal Employment Opportunity Commission has issued enforcement guidance stating that the Commission also views gender identity as a protected trait under the Law.
Employers must also be aware of state laws on the issue. Currently, 19 states’ anti-discrimination laws bar employment discrimination based on gender identity for at least some workers. Pennsylvania is among those states. Governor Tom Wolf has signed two executive orders relevant to the subject: one prohibiting discrimination against state employees based on their sexual orientation, gender identity, or HIV status; the other banning state contractors from discriminating against their LGBTQ employees. The Pennsylvania Human Relations Commission has also indicated that it will investigate all complaints of gender identity discrimination in the workplace as a form of unlawful sex bias, including complaints against private sector employers.
While the law regarding transgender individuals’ employment rights remains in flux, employers are well-advised to address the issue with sensitivity and diligence. Treating transgender employees the same as their similarly situated, non-transgender co-workers remains the best way for all employers to avoid liability for gender identity discrimination.