DOJ Expands Title VII Protection To Transgendered Individuals

By: Kathleen Connelly, Esq.

Last December Attorney General Eric Holder issued a memorandum directing the Department of Justice to consider prosecuting claims on behalf of individuals who believe they have been discriminated against based on their gender identity or transgender status.  While such claims were previously not recognized under Title VII of the Civil Rights Act, the Attorney General’s memorandum observed that “the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area” support the DOL’s new interpretation that Title VII’s prohibition of “sex” discrimination encompasses gender identity and transgender bias.

This action is consistent with other federal efforts to expand lesbian, gay, bi-sexual and transgender rights.  Last August the Office of Federal Contract Compliance Programs issued clarifying that Title VII’s prohibition of “sex” discrimination prohibits LGBT discrimination in all federal government contracts.   This action was on the heels of President Obama's issuance of , amending to expressly include gender identity as a protected class requiring affirmative action and non-discrimination in government contracts.   Likewise, in its 2012 holding in , the Equal Employment Opportunity Commission ruled that Title VII’s protections extended to an employee claiming discrimination on the basis of her gender identity and transgender status. On the Congressional front, lawmakers have introduced the Employment Nondiscrimination Act which would specifically prohibit employment discrimination on the basis of LGBT status, although those efforts have been stalled.

The Impact on NJ Employers:  The flurry of recent federal activity in LGBT rights has limited impact upon New Jersey employers because the New Jersey Law Against Discrimination has long been interpreted, and recently amended, to extend protection to LGBT individuals.   However, the heightened focus in the area of LGBT civil rights may prompt additional claims by employees.  To that end, employers must ensure their hiring and personnel practices do not discriminate on the basis of LGBT status and should remain vigilant as they may now be the target of LGBT bias claims at both the federal and state level.