We have just entered the eleventh year of the Obama Department of Labor, Alex Acosta presiding. I wrote here about how Acosta has preserved the radical Obama administration agenda in employment discrimination law, especially when it comes to manipulating statistics to find pay discrimination where none exists.
I have also documented Acosta’s refusal to disturb pro-illegal immigrant policies imposed by the Obama administration through the Department of Labor. President Trump may or may not get funding for a wall, but it’s entirely within his power to get a Secretary of Labor who won’t encourage more illegal entry through policies that promote the interests of illegal immigrants. He just needs to fire Acosta.
Today, I want to discuss another area in which Acosta has preserved highly controversial left-wing Obama policy — LGBT issues and, in particular, the war over who uses which bathroom.
The “right” of individuals to use bathrooms, changing rooms, and showers consistent with the gender they opt into at a given time, as opposed to their actual biological gender, was a centerpiece of the Obama LGBT agenda crafted by Chai Feldblum at the EEOC. The Obama Labor Department did its share to create such a right.
Its Office of Federal Contract Compliance Programs (OFCCP) issued a rule requiring federal contractors “to allow workers to use bathrooms, changing rooms, showers, and similar facilities consistent with the gender with which the workers identify.”
The Obama Labor Department also enlisted its Occupational Safety and Health Administration (OSHA) in its war on biologically-based bathroom use. It published “A Guide to Restroom Access for Transgender Workers.” This guide instructed employers that “a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.”
Why is this a matter of occupational health and safety? OSHA explained:
Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.
OSHA did not explain how using a gender-neutral restroom or one set aside for transgender individuals is more detrimental to their safety than using a restroom frequented by people of the opposite biological gender. And OSHA said nothing about the possibility that sharing a restroom with a man (biologically speaking) will cause female employees to avoid using restrooms.
Alex Acosta could have reversed the OFCCP policy and the OSHA guidance. He has not. Nor, to my knowledge, has he made any effort to do. The OFCCP rule and the OSHA guidance remain on the books. They are now Trump administration policy.
Then, there’s the legal question of whether federal anti-discrimination law protects against employment discrimination based on sexual preference/orientation. The Obama administration argued that it does. The Trump Justice Department argues that it doesn’t. (The EEOC, under Chai Feldblum, continued to argue that federal law protects gays and lesbians against employment discrimination, even after the Justice Department took the opposite view).
Where does Acosta’s Department of Labor come out on this question? It continues to uphold the Obama/Feldblum position.
According to OFCCP, “employment discrimination generally exists where an employer treats you, as an employee or job applicant, less favorably because of your sexual orientation. . .” OFCCP also takes the position that “sex discrimination includes discrimination because of an employee’s gender identity.”
There’s a case that federal law should protect individuals from discrimination based on their sexual orientation. But Congress has never taken this step. Attempts to infer a prohibition on employment discrimination against gays and lesbians from the language of Title VII of the Civil Rights Act constitute judicial activism at its worst.
The Trump administration has rejected such attempts, but Alex Acosta is not on board. Indeed, he adheres to the radical pro-LGBT position of the Obama administration Labor Department across-the-board. Nothing has changed at the DOL in this regard.
Has anyone at the White House noticed?