Labor & Employment Law Daily Justices asked to decide if Title VII prohibits gender identity discrimination
Tuesday, July 31, 2018

Justices asked to decide if Title VII prohibits gender identity discrimination

By Pamela Wolf, J.D.

The Supreme Court has been again asked to determine the scope of Title VII’s prohibition against discrimination based on “sex,” this time, whether the statute stands as a shield against employment discrimination based on gender identity and transgender status. The petition for certiorari in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC follows a petition filed in June, in Altitude Express, Inc v. Zarda, asking the Justices to determine whether Title VII protects against sexual orientation discrimination.

Gender transition. The employee, who intervened in the case after the EEOC filed suit on her behalf, is a transgender woman who was “assigned male at birth.” She was hired in 2007 and presented as a man until July 2013, when she informed her employer that she “decided to become the person that [her] mind already is.” She explained that she intended to have sex reassignment surgery and, as the first step, would live and work full-time as a woman for one year.

The funeral home fired her approximately two weeks later because she would no longer dress like a man under the funeral home’s dress code, which required all public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and jackets. The funeral home provided all male employees who interacted with clients with free suits and ties, but until October 2014—after the EEOC filed this suit—did not provide its female employees with any sort of clothing or clothing allowance.

Big win for EEOC. In a huge victory for the EEOC, the Sixth Circuit ruled in March 2018 that discrimination against employees, either because of their failure to conform to sex stereotypes or because of their transgender and transitioning status, is illegal under Title VII. The unrefuted facts showed that the funeral home fired its transgender funeral director because she refused to abide by its stereotypical conception of her sex. The appeals court thus reversed the district court’s contrary decision, holding that the EEOC was entitled to summary judgment as to its unlawful termination claim on behalf of the employee.

Nor did the Religious Freedom Restoration Act provide the funeral home owner with any relief, as continuing to employ the funeral director would not, as a matter of law, substantially burden his religious exercise. Even if it did, enforcing Title VII here was the least restrictive means of furthering the compelling government interest in combating and eradicating sex discrimination.

EEOC-DOJ battle. Notably, the employee sought to intervene in the Sixth Circuit case due to concerns that changes in the policy priorities of the U.S. government might prevent the EEOC from fully representing her interests in the case. The Trump administration’s Department of Justice, which ordinarily would defend the case if the High Court grants certiorari, is at odds with the EEOC. According to the Trump Administration DOJ, Title VII protections do not extend to discrimination based on sexual orientation or gender identity. The EEOC, however is an independent agency, which presumably is at liberty to form its own interpretation Title VII, a statute with which it is charged to enforce.

Reasons for granting certiorari. The petition for certiorari asserts that the High Court should take up the case for four reasons. First, the petition argues that the circuits are divided into three groups on whether “sex” in Title VII means “gender identity” and includes “transgender status”: A group that says it does not (8th and 10th Circuits); “another takes the same position, but subsequent case law casts doubt on that” (7th and 9th Circuits); and the Sixth Circuit’s ruling “judicially amending” “sex” to mean “gender identity.”

Second, the Sixth Circuit’s opinion conflicts with and substantially distorts the Supreme Court’s 1989 Price Waterhouse v. Hopkins ruling in which the plurality recognized that impermissible sex discrimination occurs when an employer treats one sex better than the other, and identified an employer’s reliance on sex stereotypes as one way of evidencing such discrimination. The appeals court departed from Price Waterhouse’s guidance, “by treating sex as if it were itself a stereotype and by rejecting the plurality’s recognition that any action challenged on sex-stereotyping grounds must result in ‘disparate treatment’ favoring one sex over the other,” the petition contends.

The Sixth Circuit’s decision “adds to an incomprehensible mishmash of circuit-court cases attempting to apply Price Waterhouse—a jumble that has been decades in the making,” according to the petitioner, which argues that the need for clarity is long overdue and resolution of these circuit conflicts is needed urgently.

The third reason for the Justices to take up the case is that the decision below defies the High Court’s principles of statutory construction, according to the petition. The Sixth Circuit did not ground its analysis in the statutory term “sex” as it was understood in 1964, opting instead to read Title VII as if Congress used the term “gender identity.” The decision also does not give sufficient weight to related federal statutes, Congress’ repeated rejection of bills attempting to add “gender identity” to Title VII, or to the “judicial and administrative consensus that Congress ratified when it reenacted Title VII in 1991.”

Finally, the petition argues that the Sixth Circuit’s “startling decision to change what it means to be male and female will have widespread consequences.” The appeals court ruling “threatens to drive out sex-specific policies—ranging from living facilities and dress codes to locker rooms and restrooms—in employment and public education,” according to the petition. The decision also “undermines critical efforts to advance women’s employment and educational opportunities” and “imperils freedom of conscience,” the petition contends.

Questions for Court. The petition asks the Justices to resolve two questions:

  • Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex” meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964.
  • Whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

The case is No. 18-107.

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