Wednesday, June 15, 2016

Nondiscrimination Regulations Published for Hospitals, Federal Contractors

The U.S. Departments of Labor and Health and Human Services published two important regulations yesterday (one final and one proposed) that will strengthen protections for LGBT patients in hospitals and LGBT employees of federal contractors. Although anti-LGBT bias is already prohibited in these settings, the regulations will help inform patients and workers of their rights and make clear that federal contractors can’t maintain transgender health insurance exclusions.

The Department of Labor (DOL published a final regulation yesterday updating its standards on sex discrimination in employment by federal contractors under Executive Order 11246. Consistent with other federal agencies and courts, the regulation states that discrimination based on gender identity, gender transition, transgender status, or sex stereotypes consistent sex discrimination. The regulation lists examples of discriminatory practices, including excluding transgender workers from restrooms or other facilities that are consistent with their gender identity. The regulations also recommend, as a best practice, designating all single-user facilities as unisex.

In the explanation that accompanies the regulations, DOL provided more information on the regulation’s application to anti-transgender bias. Consistent with the recent regulations under the Affordable Care Act (ACA), DOL made clear that blanket exclusions of transition-related health care in employee health plans are per se sex discrimination. Additionally (and also consistent with ACA regulations), DOL said that limits on coverage of transition-related care must have a valid, nondiscriminatory basis, and generally can’t deny services that are covered for other medical conditions. DOL also stated that discrimination can include persistently misgendering a person (such as using an old name or improper pronouns), or applying otherwise permissible gender-based job regulations in a way that discriminates against transgender workers.

Like the recent ACA regulation, the DOL regulation stops short of stating that sexual orientation discrimination is per se sex discrimination. It states that discrimination based on sexual orientation is sex discrimination “where the evidence establishes that the discrimination is based on gender stereotypes.” It notes that courts are still ruling on this question and for now, DOL will look at each complaint individually, including whether it is targets workers because of being in a same-sex relationship. While this lack of clarity is disappointing, the trend in the courts is clearly toward recognizing that all anti-LGBT discrimination is sex-based and we expect that DOL will apply the regulation consistent with that trend.

While Executive Order 11246 was updated by President Obama in 2014 to explicitly include gender identity and sexual orientation, the sex discrimination regulation provides additional clarity on protections for trans workers. It will also help inform how courts and agencies apply sex discrimination laws in other contexts, including the Title VII protections for all workers.

Also yesterday, the Department of Health and Human Services (HHS) published new proposed regulations for hospitals that take Medicare and Medicaid. Among many other provisions designed to improve care and safety for patients, the proposed regulation states that hospitals must adopt and enforce nondiscrimination policies that include “race, color, religion, national origin, sex (including gender identity), age, disability, or sexual orientation.” Hospitals must also inform patients of their nondiscrimination policy and how to file a complaint. Although the recent ACA nondiscrimination regulations already covered virtually all hospitals, the new proposed regulation will ensure that hospitals maintain their own written, inclusive policies and communicate them to patients. The new proposed regulation also categorically prohibits sexual orientation bias. In addition to the ACA’s sex discrimination prohibition, the Department said it had determined that banning sexual orientation discrimination is necessary to protect patients’ health and safety. The hospital regulation is open for public comment until August 15.

NCTE encourages anyone who has faced discrimination in health care or employment to check out our Know Your Rights resources and to seek legal help.

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