Federal Government Updates Anti-Sex Discrimination Rules to Protect Transgender Workers
Last Tuesday, the federal government’s Office of Federal Contract Compliance Programs (OFCCP) announced updates to their anti-sex discrimination rules that apply to federal contractors. The rule extends anti-discrimination protections to transgender workers employed at federal contractors by making clear that discrimination on the basis of gender identity is a form of sex discrimination.
The rule is notable as one of the first formal anti-discrimination protections for trans individuals in the workplace. While the rule is only applicable to a limited number of trans people in the country (only those who work for federal contractors), it extends significant protections to people who otherwise lacked any sort of protections from discrimination on the basis of gender identity.
Federal contractors are, as the name would suggest, companies that do business on contracts with the federal government. For example, some of the largest federal contractors are defense contractors that provide equipment and services to the US military, including Lockheed Martin, Boeing, and Raytheon.
By virtue of contracting with the federal government, these contractors agree to abide by additional rules and regulations the government sets for them. In particular, Executive Order 11246 prohibited sex discrimination in employment by federal contractors. E.O. 11246 was updated in 2014 to expressly include prohibitions against discrimination on the basis of sexual orientation and gender identity.
However, while the Executive Order itself was updated, the OFCCP’s Sex Discrimination Guidelines had not been updated since 1970. This is what prompted the new update to the guidelines- a desire by the OFCCP to bring the Sex Discrimination Guidelines “from the ‘Mad Men’ era to the modern era.”
The new rules explicitly forbid federal contractors from discriminating against employees on the basis of their gender identity. That means trans employees cannot be fired, suspended, or passed up for promotions on the basis of their status as transgender individuals. The rules also protect trans employees in other ways, including mandating that federal contractors allow workers to use bathrooms, changing rooms, and showers consistent with their gender identity.
(The new rules also make other updates to the Sex Discrimination Guidelines, including prohibitions against sex stereotyping, protections related to pregnancy and parental leave, and rules to promote fair pay practices. For a more detailed list of the full changes the rules make, see the OFCCP’s Fact Sheet here).
The new rules come at a time when anywhere between 20% and 57% of trans individuals report experiencing discrimination at work, according to the Human Rights Campaign. Despite this, there are currently no federal laws that protect workers from discrimination on the basis of gender identity.
Thus, while we should support the federal government’s new rules that protect trans employees who work for federal contractors, we must also be mindful that there is still a long way to go. While many federal contractors are large employers, they ultimately represent only a portion of the workforce, when protections against discrimination on the basis of gender identity must apply to all workers.
The Equal Employment Opportunity Commission has adopted the position that Title VII of the Civil Rights Act, which bars job discrimination on the basis of sex, necessarily includes prohibition against discrimination on the basis of gender identity as well. (The OFCCP’s new rule does not apply to Title VII, though it is based on a similar legal theory). However, with a few exceptions, generally federal courts have held that trans individuals are not protected under Title VII.
What is really needed, then, is for Congress to formally update Title VII. The Equality Act of 2015 would update Title VII’s language to explicitly prohibit job discrimination on the basis of gender identity or sexual orientation. Besides job discrimination, it would also prohibit discrimination against all LGBTQ individuals in housing, access to public places, federal funding, credit, and education.
While the current Republican-dominated House of Representatives makes passage of such a bill unlikely, this bill should be a priority for future sessions of Congress. As the OFCCP states, anti-discrimination law must to be brought from the “Mad Men” era to the modern era, and all trans individuals granted protection from job discrimination.
