Employment Law Daily USCCR pushes for protections against discrimination based on sexual orientation, gender identity
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Thursday, December 13, 2018

USCCR pushes for protections against discrimination based on sexual orientation, gender identity

In a statement released on December 7, the U.S. Commission on Civil Rights (USCCR) is urging Congress to pass legislation “that adds explicit protections against workplace discrimination on the basis of sexual orientation and gender identity,” citing to the agency’s own November 2017 briefing report, previously sent to President Trump, Vice President Pence, and the House and Senate Majority Leaders.

The Trump Administration’s Department of Justice is at odds with the EEOC over the scope of Title VII’s antidiscrimination protections in employment. While the DOJ contends that Title VII does not protect against discrimination based on sexual orientation and gender identity, and it rolled back all contrary guidance, the EEOC to continues to maintain that sexual orientation and gender identity discrimination are unlawful under Title VII.

Restoring commitment to civil rights principles. The USCCR’s statement of priorities urges the incoming 116th Congress to prioritize civil rights issues within its oversight and legislative activity “because of the urgent need to restore national commitment to civil rights principles.” The agency said that its recent evaluation of issues ranging from voting rights, to education equity, to workplace protections for LGBT individuals, to access to justice, among other critical areas, “shows that Congress can and should do much more to ensure that all Americans’ civil rights are protected.” The USCCR highlighted particular priorities, both for immediate oversight investigations as well as legislative actions, based on recent Commission reports and statements.

Definition of gender. In a December 7 letter, the USCCR also urged the U.S. Department of Health and Human Services not to narrowly define gender as relating to a biological condition at birth because it would have serious negative impacts on the health, welfare, and civil rights of members of the transgender community. “Defining federal protections barring discrimination on the basis of sex to exclude protections for transgender people runs counter to longstanding legal precedent and will leave transgender people vulnerable to unlawful discrimination,” the Commission wrote.

The USCCR noted that about 1.4 million Americans identify themselves as transgender and that they are widely recognized by the medical community as facing barriers to accessing high-quality medical care. Citing its earlier briefing report, the Commission pointed to findings that LGBT “workers have faced a long, serious, and pervasive history of official and unofficial employment discrimination by both federal, state, and local governments and private employers.”

The Commission’s research showed that “workplace discrimination can drastically increase psychological stress and other mental health problems.” “[M]any transgender workers report experiencing hostile work environments where they are often mistreated, harassed, physically or sexually assaulted, forced to present as a gender they do not identify with, asked inappropriate questions, and deliberately taunted by the use of incorrect pronouns by their coworkers,” according to the briefing report.

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