As Secretary of Labor Thomas Perez recently announced, OFCCP has updated its guidance to “make clear that discrimination on the basis of transgender status is discrimination based on sex” under Title VII and existing case law. By e-mail Director Patricia Shiu announced the release of Directive 2014-02, the purpose of which is to “clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the basis of gender identity and transgender status.” Interestingly the directive does not address protections on the basis of “sexual orientation,” (specifically covered by President Obama’s recent Executive Order) and instead focuses on gender identity and transgender status, which was the subject of a recently decided EEOC decision. The Directive is effective immediately.
OFCCP’s Directive appears to be additional guidance bridging the gap until the release and implementation of the anticipated regulations addressing Executive Order 13672. The proposed regulations are due to be published by mid-October.