Can Donald Trump Reverse Laws on Sex Discrimination at Work?

Drawing of large hand helping male officer worker, leaving female behind

Now that Donald Trump has become the next President of the United States, several communities find themselves wondering how their lives will change. They want to know how Donald Trump can affect laws that protect them from sex discrimination and sexual orientation discrimination at work. Will they be safe from harassment in years to come? Can Trump reverse laws on sex discrimination in the workplace?

In this blog post, I will discuss how the Equal Employment Opportunity Commission (EEOC) enforces Title VII prohibitions against sex discrimination. I will explain how a change in Executive Branch leadership can affect policy decisions and enforcement priorities, and what might be on the horizon under a Trump presidency.

Title VII is Well-Established Law

The primary federal statute protecting employees' civil rights is Title VII of the Civil Rights Act. First enacted in 1964, it has been amended several times during both Republic and Democratic administrations. The law makes it illegal to discriminate against employees based on a number of inherent characteristics, including sex.

The Equal Employment Opportunity Commission (EEOC) has enforced Title VII and other civil rights laws for decades. More recently it has begun enforcing Title VII against employers who discriminated against workers based on sexual orientation and gender identity. These complaints and lawsuits are filed on behalf of gay, lesbian, and transgender employees who race hostile work environments or adverse employment decisions because they do not fit traditional sexual stereotypes (including that women are not attracted to women and that men do not wear dresses or make-up).

The United States Supreme Court has upheld sexual stereotypes as a basis for a sex discrimination claim. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It has also held that same-sex harassment is sex discrimination under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1988). The EEOC has used these decisions and its policy to pursue administrative settlements for LGBT workers facing sex discrimination on the job.

While the EEOC's policies are subject to change from time to time, these court decisions will likely remain, providing a basis for private employment discrimination attorneys to seek sex discrimination claims for their LGBT clients. Last week's blog provides a more thorough discussion of President Trump's influence over the courts' decisions.

President-Elect Donald Trump's Influence on Decision Makers

The U.S. Equal Employment Opportunity Commission is a bipartisan independent agency made up of five members. These Commissioners are appointed by the President. Among the five, Jenny Yang is the current Chairperson. She was named Chair by President Obama on September 1, 2014. As Chair, Yang has the ability to direct the EEOC's policies and priorities. She has focused on equal pay for women as well as sexual orientation and gender identity claims.

As president, Donald Trump will have the authority to designate a new Chair. As of December 14, 2016, he had not announced any new EEOC appointments, so it isn't clear that there are any changes on the horizon. But if he does designate a new chairperson, or appoint other EEOC commissioners, it could cause the organization to shift its focus away from women and LGBT rights toward more traditional forms of civil rights protections.

In addition to the Commission, the EEOC is directed, coordinated, and supervised by the General Counsel, an attorney appointed by the President. In October, the EEOC's General Counsel, David Lopez, announced he would be leaving the organization in December. Much of the agency's work on sexual orientation discrimination has happened under Lopez's direction. The vacancy will allow President Trump an early opportunity to appoint new leadership at the EEOC and shape the way the agency enforces civil rights law in the future.

Finding Ways Through Uncertainty

The laws underlying EEOC protections against sex discrimination and harassment of LGBT workers haven't changed. Private employment discrimination attorneys still have decades of legal decisions to rely on in protecting American workers from hostile work environments and harmful employment decisions. If President-Elect Donald Trump wants to affect changes to the system, he will have to do it through the appointment of executive branch positions, like the EEOC Commissioners and the General Counsel. While this could make it harder to protect employee rights, it won't eliminate the good work already done by the EEOC to create legal precedent and protect vulnerable workers.

At Eisenberg & Baum, LLP, we have represented employees under a variety of political administrations. We know how a President can affect the work we do, and how to work around his influence. If you are facing sex discrimination and harassment at work, contact Eisenberg & Baum, LLP, to schedule a free consultation. We'll help you plan a strategy that guides you through the uncertain transition between presidents and protects your rights.

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