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The Trump Administration's Department of Commerce has outraged LGBT groups by removing sexual orientation and gender identity from the list of categories protected from discrimination in its latest equal employment opportunity statement.
“The Department of Commerce does not tolerate behavior, harassment, discrimination or prejudice based on race, color, religion, sex, national origin, age, or disability,” reads the 2017 Secretarial Policy Statement on Equal Employment Opportunity signed by Secretary Wilbur Ross. “We will also provide reasonable accommodations for applicants and employees with disabilities.”
The Department of Commerce does not tolerate discrimination based on race, color, religion, sex (including sexual harassment and pregnancy discrimination), sexual orientation, gender identity, national origin, age (40 years of age and over), genetic information, or disability (physical or mental), including the provision of reasonable accommodations for qualified applicants and employees with disabilities or genetic information
An October 2010 statement from Secretary Gary Locke, Obama's first commerce secretary, also read:
The Department of Commerce does not tolerate discrimination based on race, color, religion, sex (including sexual harassment and pregnancy discrimination), sexual orientation, gender identity, national origin, age (40 years of age and over), genetic information or disability (physical or mental), including the provision of reasonable accommodations for qualified applicants and employees with disabilities.
While the exclusion does not affect the legal rights of LGBT employees at the department, “it makes the employees feel unwelcome,” Mara Keisling, executive director of the National Center for Transgender Equality, told BuzzFeed News.
A source told BuzzFeed News the Ross policy statement was circulated to department staff on Thursday.
The new policy statement was uploaded some time in the last 10 days, as an archiving of the website from June 6 shows the 2016 statement.
BuzzFeed News asked the Commerce Department and the White House whether the omissions represented a new formal policy excluding sexual orientation and gender identity as protected classes at the department, and at whose direction the categories were removed. Neither immediately responded to requests for comment.
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The Civil Service Reform Act protects many LGBT federal workers from discrimination based on conduct which doesn't affect their professional performance, “which can include sexual orientation or gender identity,” according to the Equal Employment Opportunity Commission (EEOC).
In 2014, President Obama also signed an executive order offering explicit nondiscrimination protections based on gender identity to federal workers and banning discrimination in federal contracts for all LGBT people.
Trump's White House said in January that the Obama administration's LGBT protections would “remain intact.”
While the Ross policy doesn't change protections for LGBT federal workers, it is “bad management,” according to Keisling of the National Center for Transgender Equality.
“It is careless bad government,” Keisling told BuzzFeed News. “Trans employees are still absolutely covered by sex discrimination laws and sex is listed there. So even if the Trump administration doesn't want to enforce federal civil rights laws we're not going to let them get away with that.”
“If I were a manager I'd be really afraid that other managers are going to look at this and think that these are not protected people,” Keisling said.
In addition to outlining the internal employment standards at the Commerce Department, the secretarial policy sets a national example for equal employment opportunity policies.
“It sends the message that the federal government doesn't believe in civil rights laws,” Keisling said.
David Stacy, government affairs director for the Human Rights Campaign, told BuzzFeed News the omission in the new policy statement was “mean-spirited, deceptive, and irresponsible.”
“Cutting specific mention of sexual orientation and gender identity protections is a slap in the face to LGBTQ federal employees who proudly serve at the Department of Commerce and sadly signals that this administration does not value them,” Stacy said.
Under federal law, employers are required to inform their workers of their right to be free from discrimination in the workplace. The (EEOC) mandates employers provided notices to their employees, which also typically include a company policy statement on equal employment opportunity in employee handbooks, according to the Society for Human Resource Management.
Title VII of the Civil Rights Act of 1964 does not expressly include sexual orientation and gender identity, but there is emerging case law that such categories are protected, according to the American Bar Association. “The EEOC and some courts have said that sex discrimination includes discrimination against an applicant or employee who does not conform to traditional gender stereotypes,” wrote lawyer Elizabeth Naccarato for the ABA.
Stacy urged the president to direct Ross to restore the old language.
“Yet again, we see the Trump/Pence Administration actively seeking to undermine rights for LGBTQ people,” he said.