Monday, December 22, 2014

OFCCP & DOJ Join EEOC In Prohibiting Sexual Orientation and Gender Identity Discrimination

Last Thursday, the U.S. Department of Justice announced that it now interprets Title VII’s prohibition against sex discrimination to include discrimination on the basis of sexual orientation and gender identity.   The DOJ’s interpretation will cover anyone in public employment.   The EEOC has already announced that it interprets Title VII to prohibit discrimination by private employers on the basis of transgendered status, and gender identity and covers lesbian, gay, and bisexual individuals.  On December 9, 2014, the OFCCP published the final rule implementing President Obama’s July 21, 2014 Executive Order 13672, which adds “sexual orientation” and “gender identity” to the affirmative action protected categories (which includes race, sex, and national origin).  However, affirmative action employers will not be required to collect data from applicants or employees concerning their gender identity or sexual orientation nor to conduct statistical analyses of employment actions involving these groups.  The OFCCP regulation becomes effective on April 8, 2015 and will only “apply to Federal contractors who hold contracts entered into or modified on or after April 8, 2015.”

As explained in Attorney General Holder’s Memorandum, this rationale is based not just on Price Waterhouse gender stereotyping, but

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 affirmative action regulations were amended by placing “sexual orientation, gender identity,” between “sex” and “ or national origin” in several places, but most especially in 41 C.F.R.  part 60-1. 

Contractors satisfy this obligation by including the updated Equal Opportunity Clause in new or modified subcontracts and purchase orders, ensuring that applicants and employees are treated without regard to their sexual orientation and gender identity, and by updating the equal opportunity language used in job solicitations and posting updated notices.
The terms were also inserted in the provision prohibiting discrimination or preferences.  The terms were not inserted into other regulations governing the content of affirmative action plans and the requirements to collect and analyze data:
This final rule makes no changes to the provisions governing reporting and information collection set forth at 41 CFR 60–1.7 and 60–1.12(c). The obligations updated by this final rule are separate from the additional affirmative action requirements set forth in 41 CFR parts 60–2 and 60–4 that comprise the contents of contractors’ written affirmative action programs. No changes are being made to the written affirmative action program requirements of 41 CFR part 60–2, or the affirmative action requirements contained in § 60– 4.3(a)(7) of 41 CFR part 60–4, and thus those programs will continue to be limited to gender, race, and ethnicity. While the terms ‘‘sexual orientation’’ and ‘‘gender identity’’ will now appear in two sections within part 60–2 that include the full list of protected bases (in §§ 60–2.16(e)(2) and 60–2.35), the final rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases. Section 60–2.16(e)(2) simply states that placement goals for women and minorities under the existing regulations may not be used as a basis for discrimination on one of the bases protected by EO 11246, including sexual orientation and gender identity. 

The final rule and the Executive Order do not create exemptions for religious organizations which are also federal contractors, except to permit them to favor members of their own religion.  Because Congress has refused to enact non-discrimination legislation which covers gender identity or sexual orientation, the Executive Branch has elected to prohibit discrimination on these basis without legislative support.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.