The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive to provide guidance on the agency’s approach to employment discrimination on the basis of gender identity or transgender status. In Directive 2014-02, OFCCP clarifies that it considers discrimination on the basis of gender identity or transgender status to be a form of sex discrimination prohibited by Executive Order 11246.
OFCCP’s interpretation is expressly intended to follow the position of the Equal Employment Opportunity Commission (EEOC) in its interpretation of sex discrimination under Title VII of the Civil Rights Act of 1964. In a 2012 case called Macy v. Holder, the EEOC held that treating someone differently because the person is transgender is by definition sex discrimination because it is “related to the sex of the victim” in violation of Title VII.
“In accordance with Macy v. Holder and the Title VII case law on which it is based,” states the new directive, “OFCCP continues to fully investigate and seek to remedy instances of sex discrimination that occur because of an employee’s gender identity or transgender status.” When conducting such investigations, the agency adheres to the existing Title VII framework for proving sex discrimination, as outlined in the Federal Contract Compliance Manual.
OFCCP notes that the directive deals with discrimination on the basis of gender identity only as a form of sex discrimination and not as a stand-alone protected category. As reported earlier, the latter – along with sexual orientation – is the subject of an executive order recently issued by President Obama. The executive order requires OFCCP to issue regulations on that subject within 90 days of the order’s July 21 date. AGC will continue to monitor developments.