On January 20, 2021, President Biden issued Executive Order 13988 (“EO 13988”) which expands the prohibition of discrimination based on gender identity and/or sexual orientation. In so doing, EO13988 relies on the 2020 United States Supreme Court decision of Bostock v. Clayton County, which holds that discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964 “covers discrimination on the basis of gender identity and sexual orientation.” Thus, based on the reasoning set forth in Bostock, laws that prohibit sex discrimination also prohibit “discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”
EEO 13988 further states that it is the policy of the Biden Administration “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation” and “to address overlapping forms of discrimination.” As such, most significantly, EO 13988 requires the heads of all federal agencies to “as soon as practicable and as appropriate and consistent with applicable law . . . consider whether to revise, suspend or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination” and for the heads of all federal agencies to “as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy” set forth in EO 13988. Furthermore, EEO 13988 requires each agency head to consult with the Attorney General within 100 days of the date of the Order regarding “a plan to carry out actions that the agency has identified . . . as appropriate and consistent with applicable law.”
This is an important victory and an expansion of rights for those suffering from workplace discrimination due to gender identity and/or sexual orientation. If you have any questions about EO 13988 and/or have any questions about workplace discrimination and/or harassment, please do not hesitate to contact Curcio Mirzaian Sirot LLC.
* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.