- President Joe Biden issued an executive order Wednesday directing federal agencies to review all existing orders, regulations, guidance documents, policies, programs and other actions that were promulgated or administered under statutes or regulations that prohibit sex discrimination, including Title VII of the 1964 Civil Rights Act.
- The stated purpose of the order is to prevent and combat discrimination on the basis of gender identity or sexual orientation months after the U.S. Supreme Court's ruling in Bostock v. Clayton County, Georgia. The order directs agency leaders to consider whether to revise, suspend or rescind actions, or promulgate new actions, to address sex discrimination including discrimination on the bases addressed in Bostock.
- Federal agencies also will consider whether additional actions should be taken to comply with the order, including those that account for "overlapping forms of discrimination," per the order. Agency leaders will develop plans to carry out these actions within 100 days of the order's Jan. 20 effective date in consultation with the U.S. attorney general.
Biden's move to strengthen LGBT worker rights in his first hours as president marks a sea change from the preceding administration.
The Trump era saw LGBT workers secure a historic win in workplace rights when the U.S. Supreme Court ruled that employment discrimination on the basis of a worker's sexual orientation or gender identity is illegal under Title VII. The decision followed years of debate intensified by a clash between agencies and a circuit split.
The U.S. Department of Justice former under President Donald Trump asserted Title VII merely provides protections based on "the ordinary meaning of 'sex'" — including neither sexual orientation nor gender identity.
Months after the high court handed down the Bostock decision and just days before President Joe Biden took the oath of office, the Justice Department issued a memo dated Jan. 17 aiming to limit the ruling's scope, according to a report by The Wall Street Journal. As of Thursday, the memo appears to have been removed from the department's website.
The Biden administration will likely favor the employee over the employer in general, attorneys previously told HR Dive. "Any time you have a change and there's an incumbent voted out, lawyers are watching on the legislative and executive branch front," Venable Partner Nicholas Reiter said. "There's no surprise that democrats issue laws and regulations that tend to be more friendly to employees."
Employers may see increased activity at agencies such as the U.S. Equal Employment Opportunity Commission and the Occupational Safety and Health Administration. And it's possible the National Labor Relations Board will lean more in employees' favor, easing unionization.