A little over a year ago, the Trump Administration’s Department of Justice (DOJ) announced its view that the prohibition against sex discrimination contained in Title VII of the 1964 Civil Rights Act does not extend to discrimination based on gender identity. In contrast, both the Equal Employment Opportunity Commission (EEOC) – which enforces Title VII with regard to private sector employers – and the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), pursuant to a 2014 revision to Executive Order (E.O.) 11246, currently take the position that individuals are protected from workplace discrimination on the basis of LGBT+ status.

Although DOJ’s announcement at the time had little practical impact on private sector employers, the Department recently further highlighted the conflict in the agencies’ respective positions by filing a brief on behalf of the federal government in a Title VII case pending possible review by the U.S. Supreme Court.

The case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, involves a decision by the Sixth Circuit Court of Appeals where the court ruled for the EEOC on the agency’s allegations that the employer violated Title VII by firing an employee based in part on her transgender status. The funeral home is seeking Supreme Court review.

DOJ’s brief directly contradicts the EEOC’s position that Title VII protects an individual based on transgender status. There is no guarantee, however, that the Supreme Court will accept this case for review. In fact, DOJ’s brief urges the Court not to take up the case unless it also grants review in two other cases pending possible review that raise the related issue of whether Title VII provides protection on the basis of sexual orientation.

Importantly, as a practical matter, both the EEOC and OFCCP have made clear to us that at least for now they intend to continue to maintain their current positions. According to senior staff at the EEOC with whom we spoke, that agency will continue to process LGBT+ discrimination charges and litigate/conciliate those cases. OFCCP Acting Director Craig Leen separately confirmed with us that there is no change in policy at OFCCP, and the agency will continue to enforce E.O. 13672, which amended E.O. 11246 in 2014 to include sexual orientation and gender identity as protected classes.

Members of the Center for Workplace Compliance (CWC) can read more here.