Four-and-a-half years ago, the Equal Employment Opportunity Commission — an independent federal agency — came to a conclusion that ultimately has had sweeping effects across the federal government and beyond: It ruled that transgender people are protected under the existing civil rights laws that ban discrimination on the basis of sex.
Some agencies quickly moved to use that interpretation.
Others, such as the Department of Labor, moved much more slowly. For years, the department’s compliance office did not adopt a similar interpretation of an existing executive order on sex discrimination. Oftentimes, officials wouldn’t even respond to inquiries on the issue.
The EEOC’s landmark decision came at a pivotal time in the Obama administration for LGBT nondiscrimination efforts: Just weeks before, the White House had announced that the president would not sign an executive order to provide specific protections to federal contractor employees against sexual orientation or gender identity-based discrimination. The decision had upset LGBT advocates, who noted that an executive order like that would provide immediate protections for the roughly 20% of the country’s private workforce employed by federal contractors.
But it wasn't that officials ignored the issue. About a week after the EEOC’s decision interpreting Title VII of the Civil Rights Act of 1964, in fact, a flurry of emails shot back and forth between employees of several offices within the Department of Labor.
The reason: The Labor Department’s Office of Federal Contract Compliance Programs is responsible for enforcing a long-existing executive order that bans federal contractors from discriminating on the basis of sex.
The question: Would Labor’s compliance office follow the new ruling and also protect transgender workers from discrimination?
The answer wouldn’t come for more than two years.
In the intervening time, the Labor Department would barely acknowledge the question in public. At first, officials avoided commenting altogether. Then, officials said the department “follows Title VII principles” in enforcement — but would not say what those principles meant when it came to anti-transgender discrimination. Finally, nearly two years later, Labor Secretary Tom Perez spoke up about the issue — only to say that a review of whether OFCCP would be applying the EEOC’s reasoning to the executive order was “ongoing.”
More than 1,400 pages of documents reviewed for the first time by BuzzFeed News indicate that the Labor officials were in regular contact with the White House about the issue — sometimes emailing with the White House staff as decisions were being made about how to respond to media inquiries and other developments. In July 2013, BuzzFeed News had reported that an advocate blamed the White House for OFCCP’s delay at adopting the pro-transgender position. That report was never refuted by either the White House or Labor Department, and it is not contradicted by the new documents.
The documents, provided to BuzzFeed News under a Freedom of Information Act request, illustrate the actual way actual changes often come about in the federal government, especially relevant as the country prepares for a new White House: Policy depends on the responses of people from the president to White House staff to Cabinet members and division heads, all the way down to individual lawyers and spokespeople making recommendations to their bosses.
In response to detailed requests for comment provided to the White House and Labor Department on Tuesday, the Labor Department provided only a generic response.
"This administration has done more to protect and advance the rights of LGBTQ Americans than all previous administrations combined. There is always more work to be done, but we are proud of what we have accomplished in partnership with the LGBTQ community, advocates, allies, state legislators and members of Congress,” spokesperson Dori Henry told BuzzFeed News.
A White House official told BuzzFeed News, “It is not uncommon for the White House to be made aware of high-priority policy developments at agencies, or for the White House to engage on policy issues that implicate multiple agencies. On this particular issue, there was an interagency process that included the White House, the Department of Labor, and other agencies, to ensure that equities of various agencies were addressed. That process took time, as is often the case when multiple agencies deliberate on significant policy issues.” The White House declined to provide any on-the-record response.
Ultimately, in the more than two years of time that passed between the EEOC’s decision in Mia Macy’s complaint and when the Labor Department’s OFCCP provided similar guidance, the federal government awarded more than $1 trillion in federal contracts that were signed without a transgender nondiscrimination requirement.
A QUESTION RAISED
On April 27, 2012, I asked a Labor spokesperson about the implications of the EEOC's April 20 Macy decision for OFCCP’s work. Five minutes later, the spokesperson responded that he was going to “follow-up with OFCCP and other staff on this…”
The next months provided no answer to ever-more specific questions about the issue. The next two years presented an increasingly adversarial process between the Labor Department and an expanding circle of reporters and advocates seeking an answer to the relatively direct question of whether OFCCP would be protecting transgender people under Executive Order 11246, which barred federal contractors from discriminating on the basis of race, color, religion, sex, or national origin.
As the result of a series of Freedom of Information Act requests from BuzzFeed News in 2014, the Labor Department on Sept. 30 turned over more than 1,400 heavily redacted documents that were responsive to the request regarding the Macy decision and its consequences for Executive Order 11246. Documents were sought from the office of the Labor Department secretary, as well as from OFCCP. The response provide to BuzzFeed News included information that two other journalists also sought to find information on the department’s inaction through public records requests.
While the Labor Department kept a low profile on the issue throughout much of the time in question, the documents turned over this past month reveal that department staff were involved in regular conversations about the issue, had been considering the question prior to the Macy decision, and were in communication with the White House about the issue at several key moments during the time the issue remained unresolved.
None of this information has been made publicly available previously. While heavily redacted and, thus, leaving many questions unanswered, the documents — including senders, recipients, and subject lines — shine unprecedented light into the way a sub-agency’s decision to pursue an expected path took more than two years.
A week after the first reporting on the Macy decision was published, Deborah Greenfield — a lawyer in the Office of the Solicitor, the Labor Department’s lawyer — sent an email about the “EEOC’s decision about transgender discrimination” to Donna Lenhoff, a senior civil rights adviser in OFCCP; Mary Beth Maxwell, a senior adviser to then-Labor Secretary Hilda Solis; and Carl Fillichio, a public affairs staffer for the department. The chain continued with extensive back and forth on May 1 — while the request for comment was pending.
A few days later, Georgetown Law professor Nan Hunter sent an email to one of the Labor officials with an attached report: “The Relationship Between the EEOC’s Decision that Title VII Prohibits Discrimination Based on Gender Identity and the Enforcement of Executive Order 11246.” The text of the email was redacted, but the memo concluded that “the [Macy] decision will almost certainly impact the enforcement of Executive Order 11246.”
A copy of the unredacted email was provided to BuzzFeed News by Hunter. Her comments to the agency went even further, writing of the memo, “It concludes that the law is quite clear that OFCCP should follow the interpretation of sex discrimination — i.e., that it includes gender identity discrimination — in its enforcement of EO 11246.”
AN EARLIER COMPLAINT
The next day, the first story reporting on the question of how OFCCP would handle this question was published in Metro Weekly — with no comment provided by the Labor Department.
The “Johnson complaint” was a discrimination complaint brought by a transgender woman who had worked for a federal subcontractor outside of the US and sought protection under Executive Order 11246.
In a memorandum dated July 15, 2011, the OFCCP’s director was given an in-depth report on the very question of whether the executive order should be read to protect transgender people. (BuzzFeed News was unable to contact Johnson. For that reason, we redacted identifying information in the memorandum in red. [The Labor Department provided a new redacted version of the document, reflecting BuzzFeed News' privacy redactions, on Nov. 2.])
“Because the state of the law is in conflict about whether Title VII extends to transgendered [sic] individuals, whether those individuals are protected under E.O. 11246 is ultimately a policy call for OFCCP,” the report concluded. Strikingly, the memo specifically highlighted that, while the EEOC allowed for a “sex stereotyping claim for transgendered [sic] individuals,” it had not yet, at that point, “interpret[ed] Title VII as providing broader protection based on an individual’s status as a transgendered [sic] person.”
That “broader protection” came nine months later in the Macy decision.
Far from being caught off guard by the issue, in other words, OFCCP and Labor Department lawyers had, less than a year earlier, considered the issue and questions in depth — and referenced it internally in the days after the Macy decision. Until this FOIA request was fulfilled, however, no Labor Department officials had ever acknowledged the existence of this analysis.
The week after the publication of the initial Metro Weekly article about OFCCP in May 2012, Lenhoff — the OFCCP civil rights adviser — sent around an email that included discussion of a “draft response to media inquiry about the impact of Macy on our interpretation of EO 11246.”
The email also referenced “prep for WH meeting Wednesday” — the first apparent interaction between the White House and Labor Department on the matter.
The “draft response,” however, never became an actual response that spring or summer. After that scheduled White House meeting, in fact, OFCCP officials generally did not respond to requests for comment. At times when new staff members were reached, they told BuzzFeed News that they would look into the question but never provided further follow-up.
A month after the Macy decision, Tico Almeida of the group Freedom to Work made clear that some LGBT advocates were focused on the question as well. In a June 20, 2012, email left unredacted, Almeida notes “the need for the Department of Labor to interpret Executive Order 11246 consistent with the EEOC’s decision in the historic Macy case holding that discrimination based on gender identity or expression violates Title VII’s requirement that employers not discriminate based on sex.”
The email — in which Almeida said he would be raising the issue with then-Labor Secretary Hilda Solis at an upcoming dinner — prompted extensive internal discussion among Director Shiu; her civil rights adviser, Lenhoff; her special assistant, Parag Mehta; and Greenfield, the department’s deputy solicitor.
Throughout the summer and fall there were other similar internal discussions, including an acknowledgement in mid-June that the question remained “outstanding” — but BuzzFeed News was given no answer.
After Obama’s re-election in November 2012, other LGBT groups began weighing in. On Dec. 6, 2012, the ACLU’s Ian Thompson wrote to Director Shiu requesting a meeting in early January 2013 to discuss “what the Department is doing/plans to do” to protect transgender workers “consistent with the EEOC’s ruling in Macy.” The invitation was sent on behalf of the ACLU, Human Rights Campaign, National Gay and Lesbian Task Force, and Center for American Progress.
Days later, Lenhoff was provided a 15-page legal memo — which she forwarded to Shiu, other OFCCP staff, and senior officials in Solis' office — detailing the evolution on the issue of transgender protections under the law.
But an unredacted copy of Lenhoff’s responses to the LGBT organizations' request and a follow-up request made on Jan. 8, 2013, suggest no plans to schedule, let alone hold, any such meeting.
Both of her responses acknowledged receipt of the email, then stated, “We’ll get back to you.”
WHITE HOUSE INVOLVEMENT
On May 7, 2012, just as Labor Department officials were beginning to deal with the fallout from the Macy decision, they also were discussing “prep” for a meeting with White House officials.
After that White House meeting, Labor Department and OFCCP officials — who had been cooperating with and responsive to a media request for comment — largely stopped responding to requests for comment on the matter.
As pressure continued on Obama to sign the federal contractor executive order to provide specific protections against sexual orientation and gender identity-based discrimination, the Labor Department stayed silent regarding questions about whether OFCCP would be protecting transgender employees of federal contractors under Macy’s reasoning in the meantime.
Six months after Obama’s second inauguration, there was still no answer from the Labor Department. On July 19, 2013, BuzzFeed News published a report in which Almeida, the LGBT advocate, claimed that the White House had “forbidden” the Labor Department from protecting transgender workers under the executive order.
Although neither the White House nor the Labor Department provided comment for the article, the rationale made obvious sense. It would be difficult to square a White House unwilling to issue a new executive order providing specific LGBT protections with a Labor Department that was protecting against gender identity discrimination in the existing executive order.
Gautam Raghavan, the White House LGBT liaison at the time, forwarded the BuzzFeed News article to the Labor Department’s Maxwell, who then forwarded it — along with redacted comments — to several other staff in the secretary’s office and in OFCCP.
Significant internal discussion — all redacted — ensued, including from Director Shiu. The next week, on July 23, 2013, an email from Lenhoff details that a meeting was held that afternoon “re gender identity discrimination.”
A month later, White House and Labor Department staff were in contact again on the issue, in an Aug. 20, 2013 email with the subject line “Press Call on Macy.” In one 15-minute period, Raghavan and the White House’s LGBT media contact, Shin Inouye, were responding back and forth repeatedly with Mehta from OFCCP.
The email chain circulated after BuzzFeed News had been requesting comment for a story looking into whether the new Labor Secretary, Tom Perez, was going to be doing anything to begin implementing transgender protections. BuzzFeed News also sought further comment that day on the accusation that the White House was the hold-up on Labor Department action.
Despite the email chain, there was no known “press call” held about Macy — by either the Labor Department or the White House — in that time period.
A third interaction between the White House and OFCCP on the issue took place just before Perez was scheduled to attend a meeting with the Employment Task Force of the Leadership Conference on Civil and Human Rights on Sept. 20, 2013. The day before the meeting, Mehta informed Raghavan of the meeting. (Although much of the information in the emails is redacted, the fact that it was included in response to BuzzFeed News’ FOIA request means that either Macy or Macy’s effect on Executive Order 11246 were discussed in the emails.)
Early on the morning of that meeting, Mehta wrote to the public affairs staff that “Macy’s decision” was one of five “urgent items” that needed to be discussed that morning.
DECIDING "NOT TO MAKE NEWS"
As 2013 was winding down, there was still no answer as to whether OFCCP was protecting transgender federal contractors from discrimination.
OFCCP Director Patricia Shiu was due to testify before a congressional hearing on Dec. 4. As Mehta put it to his colleagues after the hearing, BuzzFeed News “cornered Pat Shiu right after this morning’s Congressional hearing.”
In response to questions, Shiu said, “I can just tell you we follow Title VII principles.” She would not clarify what those principles were or, specifically, whether that meant transgender workers were being protected. She did, however, mention an earlier meeting where the issue had been discussed and a similar answer given.
Later, BuzzFeed News sought more information about Shiu’s response.
As it turned out, a question had been asked about the Macy case at an industry conference over the summer, and the regional official who answered had given a similar "Title VII principles" response.
Mehta, the OFCCP special assistant, sent a lengthy email to his colleagues detailing the morning’s interactions and the request for more information, as well as discussing the summer conference — noting that the department had “decided not to make news” at that conference.
In the end, a Labor spokesperson reiterated the agency’s non-answer — merely explaining what the conference was and reiterating that OFCCP “follows Title VII principles.”
Mehta also noted BuzzFeed News planned to ask Secretary Perez himself about why his department's compliance office would not state how they interpreted the executive order.
Two months later, BuzzFeed News sought to do just that — attending an event at which Perez was speaking. Labor Department staff provided media access to all reporters present except BuzzFeed News, a spokesperson said, because the questions from BuzzFeed News were not expected to be on the focus of the event.
A few days later — and nearly two years after the Macy decision — Perez did answer the question of whether the Labor Department was applying Macy to enforcement of Executive Order 11246. Questioned by a reporter from the Washington Blade at a White House press briefing, Perez said, “[T]hat issue is under review in the aftermath of the Macy decision.”
The Feb. 12, 2014, answer was the first time the department acknowledged directly whether or not it was applying the Macy decision to Executive Order 11246.
The answer: It was not.
It would be nearly another five months before Perez would announce that the Department would apply the reasoning of the Macy decision to its enforcement of Executive Order 11246. That announcement was made the day after Obama said that he would sign an order specifically providing those same protections to all LGBT employees of federal contractors.
Shiu’s directive, effective Aug. 19, 2014, echoed many of the very same points made in the report issued in the days following the Macy decision, the same points that had been covered in that first Metro Weekly report and that the Georgetown Law professor had sent directly to OFCCP.
The OFCCP directive, however, took effect more than 800 days later.