Executive Order Bars Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity in Federal Laws

Feb 11, 2021

On his first day in office, President Joe Biden signed a multitude of executive orders addressing his top policy priorities and repealing or amending the prior administration’s policies. Significantly, President Biden released an Executive Order instructing federal agencies to interpret civil rights laws that prohibit sex discrimination to cover discrimination on the basis of gender identity and sexual orientation.

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This Order codifies and extends the 2020 verdict in Bostock v. Clayton County, in which the U.S. Supreme Court ruled that employers who terminate a worker for identifying as gay or transgender violate Title VII’s prohibition on sex discrimination. Mr. Biden’s executive order applies the reasoning expressed in Bostock—that “laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation”— to all federal statutes that carry sex discrimination protections.

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All federal government agencies are now required to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that prohibit sex discrimination and either revise, suspend, or rescind those statutes to fully implement protections for LGBTQ+ individuals. While the Order explicitly referenced Title IX, the Fair Housing Act, and the Immigration and Nationality Act, other federal laws that prohibit sex discrimination, including those governing health care, are expected to be affected by the Order’s provisions.

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With respect to intersectional discrimination concerns, President Biden’s order also directs government agencies to consider, account for, and combat “overlapping forms of discrimination, such as discrimination on the basis of race or disability.” The Biden administration will likely follow up with clarifying legislation that rolls back the previous administration’s policies on lawfully citing religious grounds for discriminating against LGBTQ+ individuals.

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As evidenced by his administration’s recent actions, it appears as though President Biden will continue exercising his executive power to pursue policy initiatives that aim to increase equity in the workplace. In a separate Executive Order, Mr. Biden outlined his administration’s objective to enact policies that advance “equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

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If you have questions regarding the application of President Biden’s Executive Order to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.


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