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eLABORate: U.S. Department of Justice Expands Sex Discrimination Claims to Transgender Employees

December 22, 2014

On December 18, 2014, the U.S. Department of Justice (“DOJ”), through Attorney General Eric Holder, issued a memo stating it would begin to bring claims against employers on behalf of workers who claim they have been discriminated against in the workplace due to their transgender status. Title VII of the Civil Rights Act prohibits discrimination against employees due to, among other things, the employee’s sex. However, until now, the DOJ has interpreted Title VII as not covering people who do not present as the gender associated with the sex with which they were born.

As part of its new stance, the DOJ will now interpret Title VII’s bar against sex discrimination to prohibit discrimination against workers based on gender identity, including transgender status. The DOJ’s stated rationale behind its reversing course is to foster fair and consistent treatment for all claimants, reduce confusion, and protect the civil rights of all Americans.

Importantly, the memo noted that the DOJ does not have authority to file suit against private employers, but stated that its new stance would immediately be applied to gender-identity-discrimination claims against state and local public employers alike.

The DOJ’s new stance is an expansion of the federal government’s effort to expand the protection afforded lesbian, gay, bisexual, and transgender workers. The new stance comes on the heels of the President’s July 2014 executive order which made it illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity.