Three Trump administration policy reversals issued over the course of two days in early October could quickly begin affecting the HR practices of employers nationwide.
On Oct. 5, the Department of Justice told all U.S. attorneys that they should no longer consider transgender employees to be protected against workplace discrimination by Title VII of the Civil Rights Act.
On Oct. 6, the administration published new rules rescinding the Affordable Care Act’s requirement that all employer-provided health insurance plans must cover contraceptives at no charge to employees.
Immediately afterward, the DOJ announced guidelines asserting that the freedom to practice one’s religion “includes the right to act or abstain from action in accordance with one’s religious beliefs.”
All three moves took effect immediately. Opponents immediately vowed to challenge them in court.
Transgender and Title VII: The DOJ memo to U.S. attorneys said Title VII’s prohibition on sex discrimination “does not encompass discrimination based on gender identity per se, including transgender status.”
In 2014, the DOJ declared discrimination against transgender employees and applicants to be a form of sex discrimination under Title VII. Since then, several federal courts have agreed, as does the EEOC, which as recently as Oct. 2 filed a suit alleging discrimination against a transgender man.
ACA contraceptive mandate: Dropping the ACA requirement to cover birth control free of charge expands an exemption established in the U.S. Supreme Court’s 2014 Hobby Lobby v. Burwell decision, which allowed private family businesses to forego providing contraceptive coverage if it would violate owners’ religious beliefs. Religious entities have also been exempt since 2014.
The new rule lets almost all employers to claim a religious objection to providing contraceptive coverage: nonprofit organizations, educational institutions and most private and publicly traded companies. Employers could drop coverage, effective the next plan year, just by notifying employees.
Religious freedom declaration: The DOJ guidance on religious freedom came out minutes after the ACA change was announced and was widely seen as a way to create a policy basis for it.
However, critics of the Trump administration said it also gave the green light for religiously conservative business owners to discriminate against homosexual and transgender applicants and employees. A DOJ statement said it “does not authorize anyone to discriminate.”
Advice: How each of these reversals affects HR depends on the personal moral and religious beliefs of your organization’s executive. If they express interest in changing any practices as a result of the announcements, consult your attorney. Expect these issues to remain in legal limbo for some time.