Does sex discrimination protection extend to everyone?

by Michael Haberman on January 20, 2015 · 0 comments


The Department of Justice now says sexual orientation is protected.

The Department of Justice now says sexual orientation is protected.

Title VII of the Civil Rights Act has been around since 1964. One of the provisions of that law was protection from discrimination on the basis of your sex, meaning at that time that it was illegal to discriminate against a woman on the basis that she was a woman. As time has progressed this definition has expanded to the point that Eric Holder has announced that the Department of Justice considers everyone covered by Title VII sex discrimination provisions.

Expansion of Title VII

The sex discrimination provision of Title VII has been controversial from the get-go, considered by many to be unnecessary. Introduced as a possible attempt to defeat the CRA discrimination on the bases of gender got included anyway. The controversy continued when the subject of sexual harassment as an act of sex discrimination got introduced into the courts. That question was settled in 1986 with the case of Meritor Savings Bank v. Vinson when the U.S. Supreme Court ruled that sexual harassment was indeed a form of sex discrimination and thus prohibited by Title VII.

A further expansion of the application of the law came in 1998 with the case of Oncale v. Sundowner Offshore Services. The decision of that case said that sexual harassment of a man by men was a form of sex discrimination. However, the court did not include sexual orientation in its decision. That leads us to December 18, 2014.

Eric Holder says

On that date a press release from the Department of Justice announced that the DOJ “will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.” According to the press release “the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination” which reverses a previous Department of Justice position. In 2006 the DOJ held that Title VII’s prohibition on sex discrimination did not include discrimination based on gender identity or transgender status.

Increased activity?

Because of this reversal of their previous position it is possible that there may be an increase in cases of sex discrimination based on gender identity and transgender status. In some states this protection already exists on a local legislative level but now it can be applied on all levels. However, on a Federal level the DOJ only has authority to apply this to government employers and not private employers. Many of the courts don’t agree that Title VII covers this definition of sexual discrimination. My guess is we will have to wait for a case to make it to the Supreme Court.

To avoid being that test case the law firm of FordHarrison suggests “employers may be able to avoid expensive and often protracted litigation by promulgating and enforcing anti-discrimination policies that include gender identity and transgender status.” In other words, make your employment decisions based on qualifications for the job and not some protected, or potentially protected, characteristic, that in all likelihood has nothing to do with the person’s ability to do the job.

Photo Credit: Microsoft Clipart


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