News & Commentary

October 8, 2017

On Friday, the Trump administration announced its plan to roll back the 2012 Obamacare birth control mandate, effective immediately.  The mandate required all employers to provide coverage of FDA-approved birth control in their health insurance plans.  Under the mandate, 55 million women were able to access birth control without co-payments, resulting in savings of $1.4 billion.  In addition to rolling back the Obama-era mandate, the administration announced two new rules.  One rule would allow employers to claim exemptions for religious beliefs, and the other would allow employers to claim exemptions on the basis of  moral convictions.  While religious groups have praised the administration’s actions, a recent poll shows that that the birth control mandate is quite popular, with 68% of Americans supporting it.  As of now, the American Civil Liberties Union, Massachusetts Attorney General Maura Healey and California Attorney General Xavier Becerra have sued the government over these new regulations.


In another policy shift, the Department of Justice released a two-page memorandum reversing an Obama-era policy that extended Title VII protections to transgender employees.  In 2014, then Attorney General Eric Holder issued a memo directing the Department of Justice to interpret “sex” in Title VII of the Civil Rights Act of 1964 as including gender identity.   On Thursday, Attorney General Jeff Sessions issued a memo formally revoking the policy, stating that “sex” referred only to being “biologically male or female”, and did not bar gender identity-based discrimination.  The memo directs justice department officials to take this position in all pending and future litigation, except in cases where there is controlling lower-court precedent to the contrary.  Circuit courts are currently split on the question of whether Title VII prohibits discrimination on the basis of sexual orientation.  The Supreme Court has not addressed the question of sexual orientation-based discrimination or gender identity-based discrimination, but it determined that discrimination on the basis of sex included discrimination based on gender stereotypes in Price Waterhouse v. Hopkins.

The Equal Employment Opportunity Commission recently filed suit against a Denver company for discriminating against a transgender man, putting its position on gender identity-based discrimination at odds with the Department of Justice’s new position.  The company, A & E Tire Inc., withdrew an offer of employment after finding out that the applicant was born as a female in the course of a background check.  The EEOC is arguing that Title VII’s prohibition of discrimination on the basis of sex includes gender identity.  The EEOC is seeking compensatory and punitive damages, back pay, and injunctive relief.

On Friday, the Department of Labor reported that the economy lost 33,000 jobs.  This is the first decline in seven years.  The dip is likely due to the impact of Hurricanes Harvey and Irma.  The Bureau of Labor Statistics predicted that the hurricanes could have a direct impact on employment.  The most recent jobs report does not include numbers from Puerto Rico, which was devastated by Hurricane Maria.  The report also showed that unemployment was at 4.2%, the lowest since February 2001.

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