HR Professionals Magazine September 2014


October Issue Highlights


In the Spotlight: Susan Simmons, SPHR
October 2014 Cover

Hot Topics

OFCCP Extends Transgender and Gender Identity Rights

(August 19, 2014) The Office of Federal Contract Compliance Programs (OFCCP) announced new protections for transgender individuals and those with nontraditional gender identities. It announced that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the basis of gender identity and transgender status.

Executive Order 11246 prohibits federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex or national origin. Executive Order 13672, effective July 21, 2014, amended it to add sexual orientation and gender identity to the list of protected categories. As HR professionals know, Executive Order 11246’s nondiscrimination standards are based on Title VII.

Executive Order 13672 interprets the phrase “on the basis of sex” to include gender identity and transgender status is in addition to gender identity as a protected category under Title VII. This action is largely based on a 2012 EEOC Title VII decision that strengthens legal protections against discrimination based on gender identity and transgender status, and is consistent with the DOL’s current policies and practices.

Under current Title VII case law principles, discrimination based on gender identity or transgender status is discrimination based on sex, according to the EEOC’s April 20, 2012, decision in Macy v. Holder. In this case, the EEOC unanimously concluded that discrimination because a person is transgender is sex discrimination, which violates Title VII.

The complainant in Macy, a transgender woman working as a police detective, alleged that she was denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) when she informed the ATF that she was in the process of transitioning from male to female. The EEOC concluded that discrimination on those grounds was discrimination ‘on the basis of sex,’ and cited both the text of Title VII and multiple federal court decisions also interpreting the statute.

The EEOC compared switching sex to switching religion, stating “Assume that an employee considers herself Christian and identifies as such. But assume that an employer finds out that the employee’s parents are Muslim, believes that the employee should therefore be Muslim and terminates the employee on that basis. No one would doubt that such an employer discriminated on the basis of religion.”



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