Wednesday, May 04, 2016

[UPDATED] DOJ Civil Rights Division letter accusing North Carolina of violating Title VII by discriminating against transgender employees

Marty Lederman

Vanita Gupta, the Principal Deputy Assistant Attorney General in the Civil Rights Division of the Department of Justice, sent this letter today to North Carolina Governor Pat McCrory, informing him of DOJ's conclusion that North Carolina is engaged in a "pattern and practice" of unlawful employment discrimination on the basis of sex, in violation of Title VII of the 1964 Civil Rights Act, against the State's transgender employees.  DOJ's conclusion is based on the fact that, pursuant to North Carolina's new "H.B. 2" law, the State is denying its transgender employees access to restrooms consistent with their gender identity (whereas other North Carolina employees are entitled to restroom access consistent with their gender identity).

Although some early reports represent that Gupta has threatened North Carolina with loss of federal funding, her letter does not include such a threat.  Instead, she indicates that if North Carolina continues to engage in the pattern or practice of Title VII violations, she will sue the State in federal court pursuant to 42 U.S.C. 2000e-6, seeking an injunction requiring North Carolina to comply with Title VII.  Gupta does also state, however, that she has sent similar letters to the North Carolina Department of Public Safety and to the University of North Carolina, notifying those public employers that they are not only in violation of Title VII, but also in violation of Title IX of the Education Amendments of 1972, which (unlike Title VII) imposes its nondiscrimination norm as a condition of federal funding.

UPDATE:  Here is the CRT letter to UNC, which concludes that the University is violating Title IX and the Violence Against Women Act (with respect to transgender students, employees and visitors to campus), as well as Title VII as to employees.  Notably, CRT does not disclaim the possibility of a funding cut-off, but it does not mention that remedy, either:  once again, it focuses on the prospect of a civil suit seeking an injunction.

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