Two Important Legal Tide Changes This WeekBy Rosemary M. Marin, Attorney & Shareholder; Chair, Labor & Employment
TWO IMPORTANT LEGAL TIDE CHANGES THIS WEEKThis week, the Trump Administration announced two big changes in its interpretation of the law, as compared to prior interpretations by the Obama Administration.
TITLE VII Does Not Extend To TransgenderOn October 5, 2017, U.S. Attorney General Jeff Sessions announced that Title VII, the federal law that protects employees from workplace discrimination based on certain protected characteristics—namely, sex, race, color, national origin and religion—does not extend to protect transgender individuals. This completely reverses the prior Administration’s stance that transgender individuals were protected under Title VII from sex discrimination based on the concept of “gender stereotyping.” In contrast, Sessions announced that it is the responsibility of the Department of Justice (DOJ) to interpret the law “as written by Congress” and that the existing text of Title VII does not prohibit discrimination based on gender identity. Under the Obama Administration, then-Attorney General Eric Holder announced in 2014 that Title VII “encompasses discrimination based on gender identity, including transgender status.” As a result, the Equal Employment Opportunity Commission, (EEOC), the federal agency responsible for enforcing federal workplace discrimination laws, and several federal courts, subsequently found that Title VII protections were applicable under Title VII, even though the words “gender identity” do not appear in the statute. Therefore, this decision by the new DOJ was reportedly made to go back to the pre-Obama interpretation and align the DOJ with the law as written by Congress. Nevertheless, as of the time this message is posted, the EEOC’s website is still publishing its former position protecting individuals from gender identity discrimination, and still lists protection of transgender individuals on the first page of its website, in contrast to yesterday’s statement by Sessions.
ACA Contraception Mandate Exemption ExpandedThe U.S. Department of Health and Human Services (HHS) announced today that it will not force employers to comply with the Affordable Care Act’s (ACA) contraception mandate and will exempt certain employers from an obligation to cover birth control, if they claim a religious or moral objection. Certain religious entities, such as houses of worship and their close affiliates, are already exempt from the ACA contraception mandate, but HHS’s two new regulations expand this exemption. The new regulations exempt employers from this mandate if they are: (1) entities with “sincerely held religious beliefs;” or (2) entities that object “on the basis of moral conviction [that] is not based in any particular religious belief”[emphasis added.] Although the full meaning and impact of these regulations are not yet known, some commentators believe that the employers that are most likely to be able to claim the new exemptions are religious groups who object to various types of birth control, intrauterine devices, and emergency contraceptive pills. However, the full impact that these new, broader exemptions will have on the workplace is difficult to predict. If you need assistance applying these and other ever-changing labor and employment laws, our team is here to help.