UPDATE (1/26/18): Proposed regulations were published in today's Federal Register. Stay tuned!

Asserting that the U.S. Department of Justice “must interpret Title VII as written by Congress,” the DOJ is reversing the Obama-era interpretation of Title VII, taking the position that Title VII does not prohibit discrimination based on gender identity.

In a memorandum issued this week by Attorney General Jeff Sessions, the DOJ formally withdrew a 2014 memorandum by then-Attorney General Eric Holder taking the contrary position.

Attorney General Sessions contends that transgender individuals are protected from discrimination based on sex, but not based on “gender identity per se.” He noted that Title VII refers only to discrimination based on “sex,” which is “ordinarily defined to mean biologically male or female.” He also noted that Congress had specifically referred to gender identity in other contexts, indicating that it would have done so in Title VII had that been its intent. Finally, he said that Title VII did not prohibit treatment “that [took] account of the sex of employees but [did] not impose different burdens on similarly situated members of each sex,” specifically referencing sex-specific bathrooms.

The memorandum concludes as follows:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII. . . . The Department of Justice has vigorously enforced [federal laws specifically protecting transgender individuals], and will continue to do so, on behalf of all Americans, including transgender Americans.

The DOJ position is not a surprise, given that it recently submitted a “friend of the court” brief making roughly the same arguments in a sexual orientation discrimination case.

With President Trump in office for nine months now, it is hard to believe that none of his people are yet on the Equal Employment Opportunity Commission. The four currentCommissioners, including the Acting Chair, Republican Victoria Lipnic, and former Chair Jenny Yang, were all appointed by President Obama.

But that may change soon. The Senate Health, Education, Labor and Pensions Committee held hearings this week on the nominations of Janet Dhillon for EEOC Chair and Daniel Gade for EEOC Commissioner.

(The Senate confirmation vote for William Emanuel, whose nomination as a Member of the National Labor Relations Board has been pending for quite some time, is expected to take place imminently.)

Here’s what we have learned about Ms. Dhillon and Dr. Gade from this week’s HELP Committee testimony, according to an article in Bloomberg BNA’s Daily Labor Report:

Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court, which held that sexual orientation was not covered under the MHRA.

Last week's opinion arose from a lawsuit filed by a female-to-male high school ...

Overtime rule - what's the Trump Administration doing? Last Friday, I posted about the U.S. Department of Labor's brief in the case challenging the Obama Administration's overtime rule, which has been enjoined since November 2016. The Trump DOL position had me scratching my head because it sounded an awful lot like the Obama DOL position, and I said that we'd be hearing soon from some ...

LaLonnie wrote this post with Sandra Sok, who is clerking for the summer in our Denver Office. Sandra is a rising second-year student at the University of Colorado Law School. Before starting law school, she worked as a paralegal while earning her undergraduate degree from the University of California, Irvine.

A law was born.  On June 23, 1972, President Richard Nixon ...

We officially entered the season of summer this week. What are the most common ways employers can get burned? I can think of four right off the bat.

https://www.youtube.com/watch?v=Qtbhrq8JyBw

(In the 1960s, melanoma was cool.)

Sexist air conditioning. It seems like a long time since we've read anything about this employment law "issue." The idea was that office air conditioning ...

As our readers know, discrimination against transgender individuals is often treated as sex discrimination under Title VII, as a form of unlawful "sex stereotyping."

But is it also a "disability" within the meaning of the Americans with Disabilities Act when an individual identifies with a gender other than his or her biological one?

Transgender individuals don't usually invoke the ...

The North Carolina General Assembly voted today to repeal the infamous HB 2 "bathroom law," and Governor Roy Cooper has signed the repeal into law. The law is very short. It repeals HB 2 and provides that local governments, and the state university and community college systems, cannot regulate access to multi-user restrooms, locker rooms, or changing facilities until ...

In good news for federal contractors, Congress has taken its first step toward permanently blocking implementation of the Fair Pay & Safe Workplaces Rule, also known as the contractor “Blacklisting” Rule.  As we have discussed previously, the Rule (which includes regulations and guidance implementing President Obama’s Executive Order 13673) requires ...