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Despite Attorney General's Memo, Employers Should Prohibit Gender Identity Discrimination

On October 4, 2017, Attorney General Jeff Sessions issued a memorandum that the Department of Justice is reversing its position with regards to discrimination on the basis of gender identity. Under the Obama administration, the Justice Department previously announced that it considered discrimination on the basis of gender identity to be a form of sex discrimination under Title VII. In Attorney General Sessions’ memorandum, the Department reverses course, concluding that “Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of the employees but do not impose different burdens on similarly situated members of each sex.” Notably, the Department does not say that discrimination on the basis of gender identity is never actionable under Title VII; the Supreme Court’s Price Waterhouse decision is still good law, and in it the Court held that treating someone differently for failing to conform to sex stereotypes is actionable under the Title VII. Nilan Johnson Lewis attorney Sarah Riskin says this is an important distinction. “Regardless of the Justice Department’s changing position, courts now recognize that gender identity discrimination is often—if not automatically—a form of unlawful sex stereotyping.” And in some circuits, that interpretation is likely to apply to bathrooms as well. Therefore, Riskin advises employers to adopt and maintain policies that prohibit discrimination on the basis of gender identity. To speak with Sarah Riskin about Title VII or related employment issues, contact her at 612.305.7713 or

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