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Commerce Department Removes Sexual Orientation And Gender Identity From Equal Employment Policy

The department had explicitly included sexual orientation and gender identity in its anti-discrimination policies as far back as 2010. After this story was published, the department re-issued the policy to include them once more.

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Updated on

The Trump Administration's Department of Commerce has outraged LGBT groups by removing sexual orientation and gender identity from the list of categories explicitly protected from discrimination in its latest equal employment opportunity statement.

After this story was published, the department then said it would re-issue the policy.

"The Department of Commerce does not tolerate behavior, harassment, discrimination or prejudice based on race, color, religion, sex, national origin, age, or disability," read 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."

Here's the same section from the 2014 and 2016 statements from President Obama's commerce secretary, Penny Pritzker:

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.

After this story was published, a Commerce Department spokesperson told BuzzFeed News the policy would be re-issued at Secretary Ross's direction:

To be clear, the Department’s EEO policy statement was never intended to change the policy or exclude any protected categories. The Department of Commerce policy remains that we do not discriminate on the basis of transgender status and sexual orientation. Department employees will continue to enjoy the fullest extent of the protections of all the non-discrimination laws.

EEOC has instructed federal agencies to process complaints of discrimination on the basis of transgender status and sexual orientation under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614 as claims of sex discrimination.

Secretary Ross has directed the Department to reissue the policy statement to address any concerns and prevent misinterpretation.

On Friday, Ross sent the following email to staff:

Dear Commerce Team:


I understand the concerns of many Department of Commerce staff following the 2017 EEO policy statement. I want to assure you that the EEO statement was never intended to change policy or exclude any protected categories. The Department of Commerce remains committed to nondiscrimination on the basis of transgender status and sexual orientation. Department employees will continue to enjoy the fullest extent of the protections of all the non-discrimination laws. Please find below a reissued employee opportunity statement that fully reflects my views and the views of the Department.


WILBUR ROSS

The policy was then re-uploaded to the Commerce Department website with sexual orientation and gender identity re-instated.

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 didn'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.

The change also prompted reaction from Democrats, including the House of Representatives' democratic whip, Steny H. Hoyer, who called the decision to change the language of the policy appalling.

"This decision by Secretary Ross sends a signal that LGBT Americans are not welcome at the department he leads," Hoyer said in the statement. "In addition to the injustice of his move, the Secretary ought to reflect on the role of the LGBT community in our economy and the importance of LGBT businesspeople in creating jobs and expanding trade to benefit our country and its workers."

The Democratic National Committee also blasted the Department of Commerce's initial decision to change the policy, despite its decision to ultimately re-insert language that would include LGBT people.

"You can't un-ring a bell," DNC spokesperson Joel Kasnetz said in a statement. "By trying to erase LGBTQ people from the Commerce Department's nondiscrimination policy, the Trump administration sent a crystal clear message to LGBTQ Americans: 'You're not welcome here.'"

The DNC also called on the Trump administration to strengthen protections for LGBT Americans.

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.

Prior to the department's reversal, Stacy had 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.

Hayes Brown contributed to this report.

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David Mack is a reporter and weekend editor for BuzzFeed News in New York.

Contact David Mack at david.mack@buzzfeed.com.

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