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D.C. District Court Issues Injunction Against Transgender Military Ban

Executive Summary: As previously reported by these authors, on July 26, 2017, President Trump announced via Twitter that transgender individuals will no longer be permitted to serve in the military. President Trump issued an official memorandum (“the memorandum”) on August 25, 2017, reasserting the ban and setting out a number of directives. In response, several transgender service members filed suit in the United States District Court for the District of Columbia alleging that the memorandum and the transgender military ban violate the guarantees of the Fifth Amendment of the United States Constitution. On October 30, 2017, United States District Judge Colleen Kollar-Kotelly issued an injunction, finding that the plaintiffs are likely to succeed on the merits of their claims. This order established a status quo by which President Obama’s prior policy, announced on June 30, 2016, remains in effect and permits transgender individuals to serve in all divisions of the United States Armed Forces.

WPI State of the States: Lawmakers Keep Their Focus on Equal Pay Measures

As the holiday season approaches, legislative activity at the state level is starting to slow down. The California General Assembly closed out its term, for example, giving employers a breather until January. Illinois’ regular session has also concluded, although its ongoing veto override session may yet bring about new labor and employment regulations. Municipal legislators are keeping employers on their toes, no matter the season.

Does the PDA Protect Nursing Mothers From Workplace Bias? 11th Circuit Says Yes

Does Title VII of the Civil Rights Act of 1964’s Pregnancy Discrimination Act (PDA) protect nursing mothers against post-pregnancy workplace discrimination? One federal court—the Eleventh Circuit Courts of Appeals—recently gave a resounding “yes” to that question. With its decision, the Eleventh Circuit became the second federal appellate court to answer that question in the affirmative, with the Fifth Circuit having done so in 2013. Hicks v. City of Tuscaloosa, Alabama, No. 16-13003 (September 7, 2017).

U.S. Department of Justice Rescinds Policy Protecting Transgender Employees

On October 4, 2017, the United States Department of Justice, through Attorney General Jeff Sessions, issued a memorandum rescinding an Obama-era policy protecting transgender employees from employment discrimination pursuant to Title VII of the Civil Rights Act of 1964.

Feds Say Title VII Doesn't Cover Transgender Workers

Attorney General Jeff Sessions formally reversed the federal government’s position on whether transgender workers are covered by Title VII of the Civil Rights Act, informing all U.S. Attorneys and heads of all federal agencies that the Department of Justice (DOJ) no longer believes that the antidiscrimination statute provides such coverage. The October 4 memo indicates that, according to the DOJ, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

Department of Justice Weighs In: Title VII Does Not Prohibit Gender Identity Discrimination

Executive Summary: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, gender identity, transgender status and/or gender expression remains a heated debate in the courts and between government agencies. In the latest development, on October 4, 2017, Attorney General Jeffrey Sessions announced that under his interpretation of Title VII, gender identity and transgender status are not protected. The Justice Department made the same argument with respect to sexual orientation last week at oral argument before the Second Circuit in Zarda v. Altitude Express. This represents a significant departure from the position of the Obama Administration and the current position of the Equal Employment Opportunity Commission, both of which interpreted Title VII to prohibit such discrimination. It is clear that absent Congressional action, or a decision by the U.S. Supreme Court, the issue will continue to be intensely debated.

Department of Justice Releases Memorandum Restricting Transgender Worker Protection under Title VII

On October 4, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s position that gender identity is protected as part of Title VII of the Civil Rights Act’s prohibition against sex discrimination — taking a position that is contrary to current guidance from the Equal Employment Opportunity Commission.

Discrimination Due To Breastfeeding: Jury Verdict Upheld in Favor of Police Officer

Affirming that breastfeeding is a medical condition related to pregnancy and that the police department’s conduct violated the Pregnancy Discrimination Act (PDA), a federal appeals court in Atlanta has upheld the jury’s verdict for a former Tuscaloosa, Alabama police officer. Hicks v. City of Tuscaloosa, Alabama, No. 16-13003 (11th Cir. Sept. 7, 2017). Stephanie Hicks was awarded $374,000 in damages against the police department for pregnancy discrimination due to breastfeeding.

DOE Rescinds Prior Guidance on Title IX and Sexual Violence, Issues Interim Advice on Campus Sexual Misconduct

On September 22, 2017, the U.S. Department of Education (DOE) rescinded its April 4, 2011 Dear Colleague Letter regarding sexual assault and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence.1 This is the fourth time the DOE has rescinded guidance regarding Title IX in 2017.2

Lactation = Medical Condition under Federal Law

There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (“PDA”) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employee’s post-pregnancy lactation and need to nurse her newborn.