During the first week of October 2017, U.S. Attorney General Jeff Sessions released several memorandums directed to the Department of Justice, its attorneys, and component heads, as applicable. The October 4 memo addresses treatment of transgender employment discrimination claims. The October 6 memo addresses federal protections for religious liberty and was accompanied by a supplementary memo ordering all attorneys within the Department of Justice to implement Sessions’ interpretations.
In the October 4 memo, Revised Treatment of Transgender Employment Discrimination Claims, Sessions released a directive revising the treatment of transgender employment discrimination claims under Title VII of the Civil Rights Act by stating that the federal law does not protect transgender individuals from workplace discrimination based on sex. This is in opposition to former Attorney General Eric Holder’s stance in his December 15, 2014 memo that Title VII prohibition of sex discrimination does apply to discrimination based on gender identity, including transgender status.
Sessions’ memo directs the Justice Department that the term “sex” in Title VII is applicable “only to discrimination between men and women and does not encompass discrimination based on gender identity, per se, including transgender status.” Sessions also withdrew the 2014 memo and directed the department to take this updated position regarding transgender status “in all pending and future matters, except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review.”
Sessions added that the Justice Department must and will continue to affirm the dignity of all people, including transgender individuals, and nothing in the memo should be construed to condone mistreatment based on gender identity.
This memo does not modify employer obligations under state or local law. Moreover, the federal Equal Employment Opportunity Commission (EEOC) has not changed its interpretation and enforcement of Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. The EEOC also holds that protections apply regardless of any contrary state or local laws. Similar to the EEOC’s stance, and in an effort to accommodate transgender employees, the Occupational Safety and Health Administration (OSHA) released a best practices guide to restroom access for transgender employees with the core principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.
On October 6, 2017, Sessions released two memos for all component heads and U.S. attorneys, per President Trump’s instruction in Executive Order 13798, regarding federal law and religious liberty. Federal Law Protections for Religious Liberty provides 20 principles of religious liberty and an interpretive guidance of federal law protections for religious liberty; Implementation of Memorandum on Federal Law Protections for Religious Liberty orders the implementation of the interpretations by all attorneys within the Department of Justice.
Among the 20 principles is the assertion that religious liberty is a fundamental right and that the free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs, which extends to both persons and organizations. Regarding the workplace, the principles state:
“Principle 19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts. Constitutional and statutory protections apply to certain religious hiring decisions. Religious corporations, associations, educational institutions, and societies—that is, entities that are organized for religious purposes and engage in activity consistent with, and in furtherance of, such purposes—have an express statutory exemption from Title VII’s prohibition on religious discrimination in employment. Under that exemption, religious organizations may choose to employ only persons whose beliefs and conduct are consistent with the organizations’ religious precepts. For example, a Lutheran secondary school may choose to employ only practicing Lutherans, only practicing Christians, or only those willing to adhere to a code of conduct consistent with the precepts of the Lutheran community sponsoring the school. Indeed, even in the absence of the Title VII exemption, religious employers might be able to claim a similar right under RFRA or the Religion Clauses of the Constitution.”
The memos relating to religious protections give faith-based employers more flexibility relating to their hiring practices, but it’s unclear what this means for other employers. Some argue it may open the door to discrimination— others argue they are merely reinforcing the right to religious freedom. Ultimately, it will be up to the courts to decide the law and how it applies. Regardless, employers should continue to provide a workplace free of discrimination and ensure all employees are treated equally and respectfully through consistently applied and enforced nondiscrimination policies.