Last week, the Department of Justice submitted a brief to the United States Supreme Court arguing that Title VII does not prohibit discrimination against transgender employees. The DOJ argued that the protection against “sex” discrimination does not apply to gender identity. Importantly, the Equal Employment Opportunity Commission has not changed its position accordingly, and therefore the EEOC still considers transgender employees to be protected from discrimination.
While this could ultimately affect whether employees have federal causes of action for transgender discrimination, New York State offers its own protection of transgender employees under the New York State Human Rights Law. Therefore, the DOJ’s decision means that discrimination or harassment of transgender employees in the workplace still needs to be addressed.