By contrast, last year’s statement said the department “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.”
In 2012, the U.S. Equal Employment Opportunity Commission ruled in the case Macy v. Holder that workplace discrimination on the basis of gender identity is illegal because it constitutes sex discrimination under the Civil Rights Act of 1964. Three years later, the EEOC ruled that workplace discrimination on the basis of sexual orientation was discriminatory for the same reason. While the new policy statement does not affect those precedents, LGBT advocates worried it could affect how federal managers interact with their employees.
Mara Keisling, executive director of the National Center for Transgender Equality, said in an interview that while the prohibitions against sexual discrimination still cover LGBT employees, the change in wording “is careless. It makes LGBT people in the Commerce Department feel unwelcome, and it makes it more likely managers will make illegal mistakes.”
“Just taking the words off the statement doesn’t take away anybody’s rights,” Keisling added.
In a statement Thursday afternoon, the Commerce Department said the 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,” it said. “Secretary [Wilbur] Ross has directed the department to reissue the policy statement to address any concerns and prevent misinterpretation.”
On Friday, the department had updated its policy statement to be almost identical to last year's statement: “The Department of Commerce does not tolerate behavior, harassment, discrimination or prejudice 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). We will also provide reasonable accommodations for applicants and employees with disabilities.”
David Stacy, government affairs director for the Human Rights Campaign, noted in a statement before the reversal, “In 2004, when Special Counsel Scott Bloch made a similar move, President George W. Bush’s White House disavowed the action and ultimately fired Bloch. President Trump should direct the Secretary of Commerce to restore the EEO language immediately.”
This post has been updated.