The issue of whether Title VII prohibits sexual orientation bias will have to be resolved another day.

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, I had a short post about the position taken by the U.S. Department of Justice in the Zarda v. Altitude Express "gay skydiver" case.

The DOJ has directly opposed the Equal Employment Opportunity Commission, which had also filed a brief in the case. The EEOC says that sexual orientation discrimination is prohibited by Title VII. The DOJ says it isn't.

(As I noted last week, the ...

The full U.S. Court of Appeals for the Seventh Circuit ruled yesterday that sexual orientation discrimination is indeed prohibited "sex discrimination" within the meaning of Title VII.

The decision was issued in the case of Hively v. Ivy Tech Community College of Indiana. A three-judge panel of the Seventh Circuit had found last year that Title VII did not prohibit sexual orientation ...

As we reported early this morning, the full U.S. Court of Appeals for the Seventh Circuit decided in Hively v. Ivy Tech Community College of Indiana that the prohibition in Title VII against discrimination based on “sex” encompasses discrimination based on sexual orientation. It is the first federal appellate court to do so, although recent decisions from other federal appeals ...

This latest decision from the U.S. Court of Appeals for the Eleventh Circuit on sexual orientation discrimination is weird. A panel of the court found 2-1 in Evans v. Georgia Regional Hospital that the plaintiff did not have a valid Title VII claim against her employer for sexual orientation discrimination. Whether you agree with it or not, the panel opinion was fairly ...

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 ...

Must-see TV! President Trump said last night that he would be announcing at 8 p.m. EST tonight his nominee for the U.S. Supreme Court vacancy that was created by the death of Justice Antonin Scalia. You have to hand it to the President for scheduling the announcement for prime time, when everyone can watch. Although I think it would be even better if he had all the candidates with him ...

NOTE FROM ROBIN: A portion of Jill's remarks below appeared Tuesday morning in Law360 (paid subscription required).

Notwithstanding what might happen over the next four (or eight) years, there is no question that President Barack Obama has left his mark on labor and employment law in some very important ways. Even if President-Elect Trump’s administration and the ...