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SHRM Newsletter: DOJ Says Gender Identity Bias Already Illegal
Posted on Dec. 19, 2014

This is Utah SHRM Legal-mail no. 2014-23 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







DOJ SAYS GENDER IDENTITY BIAS ALREADY ILLEGAL: United States Attorney General Eric Holder has announced that the Department of Justice (DOJ) will no longer contend in court cases that current law does not prohibit job bias based on gender identity. The DOJ decision notes that “courts have interpreted Title VII's prohibition of discrimination because of ‘sex’ as barring discrimination based on a perceived failure to

conform to socially constructed characteristics of males and females.” As a result, DOJ now concludes that the “most straightforward reading of Title VII is that discrimination ‘because of ... sex’ includes discrimination because an employee's gender

identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.” The DOJ does not enforce Title VII against private employers, but the agency that does, the Equal Employment Opportunity Commission (EEOC), takes the same exact position.  It will be interesting to watch and learn if the courts will accept this new interpretation. You can read the DOJ’s announcement here:

NEW YEARS REGULATIONS: It’s that wonderful time of the year when the federal agencies announce their “to-do” lists for regulations. Some of the agencies that regulate employers have announced some interesting projects in the works. The EEOC is drafting regulations telling employers how to offer wellness programs without violating the federal antidiscrimination laws. The United States Department of Labor (DOL) has announced an intention to issue 2015 regulations interpreting the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The FLSA regulations likely will make it more difficult to classify employees exempt, probably by raising the salary threshold from its current level of $455/week. The FMLA regulations will make it easier for same sex spouses to be recognized as spouses for purposes of obtaining FMLA benefits.

LGBT NONDISCRIMINATION RULES ANNOUNCED FOR CONTRACTORS: The DOL Office of Federal Contract Compliance Programs (OFCCP) has announced new rules for federal contractor compliance with President Barack Obama’s executive order prohibiting discrimination based on sexual orientation or gender identity. The rule requires new nondiscrimination mandates in new contracts entered into next year. Contractors should update their nondiscrimination policies and training to include references to sexual orientation and gender identity. You can read the final rules here:

BACKGROUND CHECK LAWSUITS MORE COMMON: More and more, I am reading news accounts of employers facing lawsuit for not conducting background checks properly, or in accordance with the Fair Credit Reporting Act (FCRA). The most recent headline involves claims that a national retailer failed to properly initiate checks or get applicant/employee consent for the same. The company allegedly also improperly required employees to waive claims as part of the background authorization they did provide. Other retailers recently have paid over id="mce_marker"1 million to settle similar claims. The bottom line? If you do background checks, make sure you verify with legal counsel that you are doing them the right way.

EMPLOYMENT LAW NEWS BRIEFS: (1) The United States Supreme Court has issued a ruling concluding that employees need not be paid, under FLSA, for time spent going through a security check at the end of their workday. The case involved a national retailer that required its warehouse employees to be checked to verify they were not taking any of the company’s products. (2) DOL has recovered almost $5 million in wages for natural gas workers who were not properly paid overtime. The problems include misclassified employees and the failure to include bonuses in the calculation of the overtime rate. (3) An oil servicing company in Wyoming has agreed to pay id="mce_marker".2 million to settle employee claims brought before the EEOC alleging race harassment and retaliation. The involved employees alleged they were routinely subjected to racially derogatory comments and jokes. (4) An investment bank has been ordered, by a California arbitrator, to pay over $7.5 million to former employees on military discrimination claims. The claims at issue were that employees were disparaged and discriminated against because of their reserve duty service.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012