Transgender Employment Discrimination Rights No Longer Protected by Title VII

In an October 4, 2017, memo to all federal prosecutors, Attorney General Jeff Sessions reversed guidance issued by the Obama administration regarding transgender rights under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. Sessions said Title VII’s prohibition on sex discrimination does not encompass discrimination based on gender identity per se, including transgender status; the Department of Justice will take this position in all pending and future matters.

This action is the latest in a string of reversals of Obama administration employment policies, including:

  • The Department of Justice (DOJ) no longer recognizing sexual orientation discrimination protection under Title VII (Zarda v. Altitude Express)
  • Rescinding the DACA (Deferred Actions for Childhood Arrivals) program
  • The DOJ supporting class action waivers as a condition of employment (National Labor Relations Board v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris, three cases now before the Supreme Court — which found itself in the unusual position of hearing opposing arguments from two government agencies, the DOJ and the EEOC)
  • The Department of Labor (DOL) invalidating the 2016 expansion of the Fair Labor Standards Act (FLSA) overtime rule

Employers should expect more changes as the Trump administration and the U.S. Supreme Court turn their attention to several long-standing disputes on labor and employment issues.