The Office of Federal Contract Compliance Programs (OFCCP) issued a Directive on Gender Identity and Sex Discrimination (DIR 2014-02), announcing that it will follow the EEOC and investigate claims of gender identity discrimination as sex discrimination. To see the Directive, go to the OFCCP website at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.
OFCCP enforces Executive Order 11246, which prohibits federal contractors and subcontractors from discriminating based on race, color, religion, sex, or national origin. In light of the EEOC’s decision in Macy v. Holder, OFCCP is updating its guidance on gender identity and transgender status claims.
In Macy, a police detective (presenting as a male) applied for a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), and was told the job was his pending the results of a background check. During the background check, Macy disclosed that he was in the process of transitioning from male to female and later learned ATF had awarded the position to someone else. The Commission held that Macy’s claim was for discrimination based on sex, noting that:
“. . . Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . .. [T]he statute’s protections sweep far broader than that, in part, because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”
Consistent with Macy, OFCCP’s directive does not create a new protected class under Title VII—it simply includes gender identity and transgender status as a form of sex discrimination. However, the Directive notes that the recent Executive Order 13672 specifically prohibits LGBT discrimination in federal contracts.
Both OFCCP and the EEOC’s decisions send the message that the federal government will pursue claims based on gender identity and transgender status discrimination and employers need to be prepared.
Continue to make decisions based on merit and, as with any other legally protected classifications, make sure you can defend those decisions. Also, if an employee or applicant brings up an issue about gender identity or transgender status, be prepared to handle it professionally and make clear that such issues will not affect your employment decisions.