Few Documents Back Up Labor Department's Claim Of "Ongoing Review" About Transgender Rights

BuzzFeed submitted a public records request for documents about the review. The only document the Labor Department produced was a letter mentioning the "ongoing review."

WASHINGTON — The Labor Department has yet to begin in earnest its review of transgender worker protections despite repeated claims by Secretary Tom Perez that it is underway, based on a review of the results of a public records request.

The only document in Perez's office pertaining to the review is a single letter sent to several members of Congress mentioning that the review is ongoing, according to records produced following a Freedom of Information Act request submitted by BuzzFeed in April.

The request followed more than two years of incomplete answers from the Labor Department, including more than a dozen email and in-person requests about whether the department would follow a ruling stating that "sex discrimination" bans include protections against transgender discrimination.

More than two years ago, the Equal Employment Opportunity Commission ruled in a case brought by Mia Macy that Title VII of the Civil Rights Act protects transgender people from employment discrimination under the act's ban on sex discrimination. Since then, Labor Department officials have refused repeatedly to say whether the department is applying the EEOC's interpretation to the sex discrimination ban in the executive order signed by President Lyndon Johnson that bars federal contractors from discrimination.

In February, Perez responded to a question at a White House briefing by saying that the issue was under review — the first time anyone with the department mentioned any such review. A little more than a month later, Perez expanded on that, saying on March 21, "It is under review. It continues to be under review, and I'm in charge of it." He would not say when the review began, who was a part of the review, or when he expected the review to end.

But when BuzzFeed filed a FOIA request in April for records pertaining to the review, no responsive documents could be found in the Office of the Secretary, according to a May 6 letter from Charlotte Hayes, the deputy assistant secretary for policy.

On May 19, Hayes sent a second letter, stating that "a further search within the Office of the Secretary" resulted in "locat[ing a] responsive document."

The document, date-stamped March 21, was a response to several members of Congress who had asked Perez for information about, among other issues, the enforcement of the executive order in light of the EEOC ruling. In the three-page letter, Perez wrote about the EEOC decision and the review mentioned at the news conference in one-half of a single paragraph, adding only, "That review is ongoing." BuzzFeed was provided with copies of each letter, with identical text other than the addressee, sent to all 19 House members.

BuzzFeed requested all records between April 20, 2012 and April 23, 2014 related to:

(1) the Equal Employment Opportunity Commission's decision in Mia Macy v. Eric Holder, Appeal No. 0120120821 (April 20, 2012), and
(2) any documents relating to a review of or implementation discussion relating to the effect and/or consequences of the Macy decision on the implementation of Executive Order 11246, and
(3) any communications between officials within the Office of the Secretary and the Office of Federal Contract Compliance Programs regarding the implementation of Executive Order 11246 in light of the Macy decision, and
(4) any communications between officials within the Office of the Secretary (or other Department of Labor officials) and any EEOC or White House employees regarding the implementation of Executive Order 11246 in light of the Macy decision.

BuzzFeed also submitted a similar FOIA request to the Office of Federal Contract Compliance Programs (OFCCP), which is under the Department of Labor and responsible for enforcing Executive Order 11246.

On May 28, BuzzFeed received a "partial response" to the request from Herman Narcho, the enforcement branch chief in the Division of Program Operations within OFCCP.

"While OFCCP's search is ongoing, the agency has identified 24 e-mails which are responsive to your request," Narcho wrote. "All 24 e-mails are being withheld in their entirety pursuant to Exemption 5 of the FOIA [5 U.S.C. Sec. 552(b)(5)]. For 23 of the responsive emails, we are invoking the deliberative process privilege incorporated within Exemption 5 to protect OFCCP's decision making process. In addition, with respect to Email No. 2, this e-mail is protected by the attorney-client privilege incorporated within Exemption 5."

As of June 3, OFCCP has not followed up with any other documents — provided or withheld — responsive to BuzzFeed's request.

In contrast, both the EEOC and the Justice Department have made clear that, as to Title VII, it is enforcing the expanded definition of "sex discrimination," as has the Education Department in its enforcement of Title IX.

The Human Rights Campaign, which has called for action from the Labor Department on the issue but has mostly stayed out of the public debate, appears to have reached a breaking point on the issue.

"How long does the review of a black and white decision that protects trans Americans need to last? It's critical that our community understand the elements of this review process, and the unfortunate fact is that these documents shed no new light on the reasons for the delay," HRC spokesman Fred Sainz said Tuesday. "Secretary Perez has long been an advocate for LGBT equality. It's entirely in keeping with his past record of accomplishment that he bring this review process to a quick close and that the Labor Department announce how they plan to effectuate the historic Macy decision."

Tico Almeida, the founder of Freedom to Work, has long pressed the Labor Department for action and been a key critic of the administration's inaction on LGBT workplace issues.

"If the Labor Department can conduct a review of the [United States v.] Windsor decision [striking down the Defense of Marriage Act] in less than two months before issuing revised guidance on Family and Medical Leave Act," he said in reference to August 2013 changes to include same-sex spouses under the FMLA that followed the June 2013 Windsor decision, "there's no possible reason why a review of the Macy decision should take more than two years. This stalling should end."

BuzzFeed has followed up with a third and fourth FOIA request for any similar documents in the Office of the Secretary or OFCCP between the April 23 request and June 3.

Read the first response from the Office of the Secretary:

Read the second response from the Office of the Secretary: