Washington has always been on the cutting edge of employment law, expanding the boundaries of employee protections. For example, Washington has expressly prohibited gender identity discrimination for years. RCW 49.60, et. seq. The federal government has been slow to adopt the same protections. Now, at the end of the Obama presidency, it appears that federal employment law will begin to catch up with Washington.
Traditionally, Title VII has been interpreted to prevent race, color, religion, national origin, and sex-based discrimination, but not gender identity discrimination. Following the United States Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case that involved claims of sex discrimination by a female senior manager at Price Waterhouse who claimed that she was not promoted to partnership because she did not conform to traditional gender norms, many federal courts have recognized that gender identity claims could be established under a “sex-stereotyping” theory—discrimination based on a perceived failure to conform to socially constructed gender norms. However, these courts did not agree on whether gender identity discrimination was per se prohibited.
On December 15, 2014, outgoing Attorney General Eric Holder issued a memorandum clarifying the Department of Justice’s position on Title VII protections against gender identity discrimination. Mr. Holder announced that, upon consideration of the plain language of Title VII, and the Supreme Court cases interpreting it, the best reading of the statute encompasses protections against gender identity discrimination per se, and that would be the Department of Justice’s position in the future.
Although Mr. Holder did not elaborate on the impact that this policy would have on the availability of defenses in gender identity discrimination claims, a defense that transgender individuals are not a “protected class” no longer appears to exist under federal law and that the federal government has now joined Washington. Therefore, employers across the United States must be vigilant to prevent any discriminatory, retaliatory, or harassing conduct directed toward transgender individuals because of that identity.