Pursuant to a new executive order, discrimination against federal employees based on gender identity and transgender status constitutes sex discrimination under existing Executive Order 11246. On July 21, 2014, President Barack Obama signed Executive Order 13672, adding “sexual orientation” and “gender identity” to the list of prohibited bases of discrimination by federal government contractors and adding “gender identity” as a protected category for federal employees. In the Order, President Obama directed the Secretary of the Department of Labor (DOL) to prepare regulations to implement the requirements of the order within 90 days. The DOL’s Office of Federal Contract Compliance Programs (OFCCP) is the agency tasked with enforcing anti-discrimination laws that apply to government contractors, including Executive Order 11246. On August 19th, 2014, the OFCCP issued Directive 2014-02, which “clarif[ies] that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the bases of gender identity and transgender status.”
The OFCCP enforces Executive Order 11246 pursuant to Title VII of the Civil Rights Act of 1964 and interpreting case law. The recent directive reflects changes in current Title VII law, and specifically cites Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012), a case in which the EEOC found that discrimination on the basis of gender identity, change of sex, and/or transgender status is cognizable under Title VII. In Macy, a transgender police detective was denied a job with the Bureau of Alcohol, Tobacco, and Firearms (ATF) after informing the ATF that she was in the process of transitioning from male to female. The EEOC unanimously determined that this was discrimination “on the basis of sex,” a protected category under Title VII.
Like several federal courts have done, see, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011),the EEOC relied on the theory that discrimination based on gender non-conformity is sex discrimination because it relates to the sex of the victim. In Macy, the EEOC also noted that Title VII’s prohibition on gender discrimination “encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.” Macy 2012 WL 1435995 at *6. Thus, sex-based discrimination occurs anytime it relates to the sex of the victim, whether motivated by sex stereotyping or any other reason, such as an employer’s discomfort with an employee’s gender identity or transgender status.
U.S. Department of Labor Secretary Tom Perez recently stated: “Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one.” We agree. However, the reach of executive orders are limited and only apply to the federal civilian workforce and federal contractors and subcontractors. Although Executive Order 13672 and Directive 2014-02 are a step forward, more comprehensive advancement in LGBT employment rights requires federal legislation.