On August 19, 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a new Directive, 2014-02, clarifying the agency’s guidance on discrimination based on gender identity and transgender status. The directive can be found at: http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.
The Directive clarifies that under current Title VII of the Civil Rights Act of 1964 (Title VII) case law, discrimination based on gender identity or transgender status is considered discrimination based on sex. Directive 2014-02 cites a recent Equal Employment Opportunity Commission (EEOC) decision in Macy v. Holder wherein Macy, a transgender woman working as a police detective, was allegedly denied a position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) based on her disclosure that she was in the process of transitioning from male to female. The EEOC determined that discrimination based on these factors was by definition sex discrimination as it was related to the sex of the victim whether it was motivated by sex-stereotyping, discomfort with the idea of a transition, or any other reason related to the gender identity of Ms. Macy.
The EEOC has concluded that gender identity and transgender status do not need to be specifically addressed in Title VII as protected categories, as they already fall into the protected category of “sex”. The Directive states that the OFCCP will continue to investigate cases of sex discrimination based on gender identity and transgender status as it adheres to existing Title VII framework, including the case of Macy v. Holder. The Directive does not address gender identity and sexual orientation as separate protected categories, as was the subject of Executive Order (EO) 13672, which amended EO 11246 to include these categories. The proposed regulations implementing EO 13672 have yet to be published.
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