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Labor Department Adds Gender Identity and Transgender Status to Prohibition on Sex Discrimination

On August 19, 2014, the Department of Labor issued a guidance advising that it will consider cases of discrimination based upon gender identity and transgender status to be violations of Title VII of the Civil Rights Act and Executive Order 11246 (which prohibits employment discrimination by federal contractors). According to the guidance, “disparate treatment of a transgender employee because he or she does not conform to the gender stereotypes associated with his or her biological sex is a form of sex discrimination.” This policy takes effect immediately and does not require any additional rulemaking as it is merely an interpretive ruling under existing regulations.

This recent publication is in addition to the rulemaking that will be initiated to implement Executive Order 13672, issued July 21, 2014, which amends Executive Order 11246 to prohibit federal contractors from discriminating against employees and applicants on the basis of sexual orientation or gender identity, in addition to race, sex, religion and national origin. Executive Order 13672 requires new regulations, which the Department of Labor is directed to publish in October. It will apply to contracts and contract modifications issued after the effective date of the amended regulations.

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Jonathan T. Cain