John C. Fox and Candee ChambersThe “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published weekly. Here are the latest developments:

Wednesday, May 25, 2016: 11 States And 2 State School Districts Sue The US Over Transgender Protection (Generally) Under Titles VII And IX: This is not what you think. The popular media has widely misreported this story. This is not just a challenge to the Obama Administration’s stance on transgender bathroom use (as in the North Carolina cross-Complaints we reported in our May 16th WIR, this Complaint is an across the board legal challenge to ALL aspects of the Obama Administration’s stance on Transgender discrimination (whether covered by Titles VII and/or IX; employment protections; programs and activities discrimination; and bathroom use, etc.).

As we predicted in our May 16th WIR would occur, major litigation has now ensued over the Obama Administration’s position supporting Transgender rights. Last week’s Complaint by the States was baited by the U.S. Departments’ of Justice and Education issuance on Friday May 13, 2016 of a nationwide advisory letter to state schools receiving federal funds governed by the 1964 Civil Rights Act (as amended in 1972 to add Title IX which made discrimination based on “sex” unlawful in federally funded programs). The advisory letter warned state schools receiving federal funds that they must allow individuals who are Transgender to use the bathroom of their identity and not that of their biological birth. Alternatively, the advisory letter warned, federal funding agencies could cut off payment of federal funds to the offending schools. The advisory letter was the proverbial “straw which broke the camel’s back.” Last Wednesday, less than two weeks after publication of the advisory letter, the following 11 states and 2 school districts filed a broad lawsuit against the Obama Administration in the federal District Court in Wichita Falls, Texas seeking to strike down all gender identity protections the Obama Administration now interprets federal laws to impose (other than the 1994 Violence Against Women Act and pursuant to OFCCP’s three compliance programs):

  1. Alabama
  2. Arizona Department of Education
  3. Georgia
  4. Harrold Independent School District in Harrold, Texas (southeastern corner of The Panhandle)
  5. Heber-Overgaard Unified School District in Heber, Arizona (northeastern Arizona)
  6. Louisiana
  7. Maine
  8. Oklahoma
  9. Tennessee
  10. Texas
  11. Utah
  12. West Virginia
  13. Wisconsin

The defendants are:

  1. United States of America
  2. United States Department of Education
  3. United States Department of Justice
  4. Equal Employment Opportunity Commission
  5. United States Department of Labor, and
  6. Occupational Safety and Health Administration

OFCCP and its three compliance programs are NOT directly involved in this litigation since none of the Plaintiff States (as States) are federal contractors (although some State subcomponents are undoubtedly federal contractors).

The Complaint states that the 13 Plaintiffs “include a diverse coalition of States, top State officials, and local school districts, spanning from the Gulf Coast to the Great Lakes, and from the Grand Canyon to the Grand Isle, that stand behind the singular principle that the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat. Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.”

The first procedural issue in this case will be whether to consolidate this Complaint with the two much narrower North Carolina Complaints (involving only the “bathroom access” issue since a North Carolina gubernatorial Executive Order already makes “gender identity” discrimination unlawful discrimination among North Carolina state Executive Branch agencies). The United States will presumably attempt consolidation (to narrow the chances to 1, rather than to 3, that the States would win a successful ruling from one of the three Judges currently scheduled to preside over the three currently pending Complaints).

The Complaint of the States questions not only whether President Obama has the legal authority to interpret Titles VII and IX to make discrimination based on “gender identity” unlawful, but also whether he has usurped the authority of the States to act to control local bathroom use based on their inherent police powers and whether the President has violated procedural requirements to impose new Rules and new interpretations of properly authorized federal statutes. While it will be largely lost on the public at large, a core, but exotic, administrative law issue on which all three cases will turn is whether the courts must and will give “deference” to the Obama Administration’s written interpretations of Titles VII and IX to render “gender identity” discrimination to be “unlawful” discrimination. If the courts feel they must defer, the President’s recent interpretations will prevail. If the Courts decline to give the Defendant federal agency interpretations deference, the President will lose. However, it is technically and legally possible the President could win all issues, lose all issues or win some of the issues depending on which written interpretations to which the Courts choose to defer (or not).

This is going to be MAJOR and complex litigation which will be among the most exciting in the United States for the next two years. All three cases will almost necessarily stretch into 2018 and can be expected to go to the U.S. Courts of Appeals, if not the U.S. Supreme Court.


Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at with your ideas.

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John C. Fox
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