The White House is reviewing guidelines proposed by the Equal Employment Opportunity Commission in the waning days of the Obama administration to extend the commission’s interpretation of sex-based harassment to include actions based on gender identity and sexual orientation, Lydia Wheeler reports at the Hill. The unusual move has raised fears among civil rights advocates that it represents another effort by the Trump administration to roll back regulatory protections the previous administration sought to provide to LGBT employees:
The language is at odds with the way Cabinet officials in the Trump administration have viewed and carried out the laws governing discrimination, which can include harassment, when it comes to LGBT people. And that’s why civil rights advocates and a former commissioner fear it won’t be approved. …
What’s unusual, former EEOC Commissioner Jenny Yang said, is that the guidance is under review by the White House Office of Information and Regulatory Affairs (OIRA) and has been since November. Yang, who left the EEOC on Jan. 3, said the proposal is sub-regulatory guidance, which is not typically reviewed by the White House because it’s only an expression of the agency’s policy.
“It’s our view of the law,” she said. “There’s no binding effect on employers. It never says you must do that or have to do this. It’s our interpretation of the law and it’s meant to be a resource for employers as opposed to a directive.”
Since taking office in January 2017, President Donald Trump has canceled a number of Obama-era initiatives that extended anti-discrimination protections to LGBT Americans, particularly transgender individuals: Last February, he rescinded a directive issued by former president Barack Obama stating that schools throughout the country could not force transgender students to use restrooms designated for the gender they were assigned at birth without violating federal anti-discrimination laws.
Last July, the Justice Department took the unusual step of filing a brief opposing the EEOC’s position in a federal court case regarding whether Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits discrimination on the basis of sexual orientation. The department contends that Title VII only applies if men and women are treated unequally and that applying any more expansive interpretation of this protection without an act of Congress amending the law exceeds the scope of the commission’s powers. In October, Attorney General Jeff Sessions issued a guidance memo stating that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs,” which LGBT rights advocates decried as a license to discriminate.
Despite the urging of dozens of major employers seeking clarity on the question, the Supreme Court in December declined to hear a case concerning whether discriminating against LGBT employees on the basis of their sexuality violates Title VII, leaving unresolved a split among federal circuit courts that have issued different rulings. Until the high court chooses to address the issue, or Congress rewrites the Civil Rights Act to explicitly include protections for LGBT individuals, whether these employees are legally protected remains unsettled. There is no reason, however, why employers cannot adopt anti-discrimination policies of their own for LGBT employees.