DOL Issues Guidance Concerning Gender Identity and Transgender Status

Randi Klein Hyatt
Randi Klein Hyatt
08/25/2014

On August 19, 2014, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued guidance concerning enforcement actions for gender or transgender discrimination. This guidance follows up on President Obama’s Executive Order 13672, which added gender identity and sexual orientation as protected categories in federal employment and contracting.

The DOL guidance makes clear that the OFCCP – the agency charged with enforcing discrimination by federal contractors or subcontractors – will provide full protection and enforce federal non-discrimination laws (namely, Title VII) on behalf of people who believe that they have been discriminated against on the basis of their gender identity or transgender status. In doing so, the DOL noted that it generally follows the EEOC lead when interpreting non-discrimination statutes and specifically pointed to a prior EEOC decision concluding that such discrimination was within Title VII’s prohibition against sex discrimination.

The guidance qualifies its scope and notes that it “deals with discrimination on the basis of gender identity only as a form of sex discrimination. It does not address gender identity as a stand-alone protected category ….” The OFCCP will continue to retain authority to investigate allegations of sex discrimination concerning federal contractors or subcontractors.

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