It is important to remember Civics 101: the laws made by Congress cannot be overturned by the Executive Branch. Yet the extent and volume of Executive Orders in the past 27 days is impacting the way agencies work and gives the impression of real change. Shifts in policy and enforcement are a big part of these orders. For the workplace, it feels like standing on quicksand. Let’s break down the most recent assault on established law: discrimination based on gender identity and trans rights.
WHAT HAPPENED? Right out of the gate, as part of a flurry of Executive Orders, the White House ordered that the federal government recognize two sexes, male and female, and defined sex as limited to “male and female” and specifically excluded gender identity. This is a major shift to eliminate protections. This order is in direct opposition to the landmark Bostock 2020 case, where the Supreme Court ruled that “sex” under Title VII includes discrimination based on sexual orientation and gender identity and to the Equal Employment Opportunity Commission (EEOC)’s own policies. The EEOC quickly responded by removing gender ideology from all statements, policies, regulations, forms, and communications, including removing the use of X and a pronoun app. Now, according to the Associated Press, the EEOC has dropped six of its own transgender discrimination cases on behalf of workers.
WHAT YOU NEED TO KNOW:
- Legal protections for LGBT workers remain in place. The EEOC’s change in enforcement priorities does not negate the duty to comply with the law. Maintain policies and training to protect your organization.
- As we often note, many states and even local laws are more expansive than the federal law. The shift in EEOC enforcement has zero impact on your compliance here.
- As companies from Costco to JP Morgan have noted, an inclusive workplace is good business from hiring to retention to workplace culture.
QUESTIONS? We can help. We keep up with the fast breaking changes that impact your workplace so you do not have to. Contact us.