Is Trump Administration Signaling a Shift in Discrimination Rules?
During July, actions taken by two Trump administration departments appeared to communicate a potential change in policy regarding Title VII and Title IX of the Civil Rights Act of 1964.
Education Secretary Betsy DeVos made statements widely interpreted to signal a shift in the Department of Education’s focus in Title IX enforcement to provide greater protections to those accused of sexual assault. Later in the month, the U.S. Department of Justice (DOJ) filed an amicus brief in New York for a case concerning an employee’s Title VII claim of sexual orientation discrimination. The DOJ argued that Title VII does not prohibit employers from discriminating against an employee based on the employee’s sexual orientation, a change in position from that taken by the DOJ during the Obama administration.
For now, neither of these things makes any actual changes to the federal discrimination laws. It is also likely that such policies would be met with legal challenges and review by the courts. But it may indicate that the current administration views enforcement of these laws differently than occurred during the previous administration.
In California, employers, local agencies and schools are subject to the Fair Employment and Housing Act (FEHA), which explicitly prohibits discrimination in employment based on sexual orientation as well as sex, gender, gender identity and gender expression. California schools are also subject to the Sex Equity in Education Act. It is important to continue enforcing your policies and procedures about workplace discrimination and sexual assault.
It is unclear what direction the federal enforcement of these discrimination laws will take under the Trump administration, but California is definitely moving toward strong protection of rights recognized under the Obama administration. A bill, SB 169 is currently under consideration to put standards in California law that address sexual violence, and provide for grievance procedures to promptly and equitably resolve complaints of sexual assault, sexual discrimination and harassment.
More details about these developments can be found in our Briefing. We will continue to monitor both state and federal law on these issues.