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How will they rule? Justices hear opposing takes on Title VII and its impact on LGBTQ employees

By Pamela Wolf, J.D.

The Justices will need to sort out whether Title VII shields gay, lesbian, and transgender employees from employment discrimination.

On October 8, the Justices tackled a triad of cases questioning exactly how far Title VII extends in protecting people from employment discrimination “because of sex.” The Court will determine whether a transgender funeral home employee, a gay skydiving instructor, and a gay child welfare services coordinator, all allegedly fired for reasons related to sexual orientation or gender identity, are protected from discrimination under Title VII.

These cases, and the arguments both for and against Title VII protection, are emotionally charged and fraught with controversy.

Bostock v. Clayton County, Georgia (17-1618), and Altitude Express, Inc. v. Zarda (17-1623) were consolidated for one hour of oral argument on whether Title VII’s prohibition against discrimination “because of sex” encompasses discrimination based on sexual orientation.

R.G. & G.R Harris Funeral Homes v. EEOC (18-107) was argued separately on the question whether Title VII prohibits discrimination against transgender people based on their status as transgender or as sex stereotyping under the Court’s 1989 decision in Price Waterhouse v. Hopkins.

Deeply controversial. The questions presented in these cases are so controversial that it’s not just the courts that are split on the answers. Under the Trump Administration, the EEOC and the Department of Justice stand in opposition to one another. The EEOC has long maintained that discrimination “against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII” in both sub-regulatory guidance (still posted on the agency’s website today) and administrative and court adjudications.

Policy reversal upon policy reversal. The Trump Administration, meanwhile, has withdrawn Obama-era guidance that, consistent with the EEOC’s position, gave Title VII a broad reach. On October 4, 2017, Attorney General Jeff Sessions issued a memorandum to U.S. Attorneys stating, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

The Sessions memo was a reversal of earlier policy: He withdrew the December 15, 2014, memorandum issued by Attorney General Eric Holder under the Obama Administration. Holder’s policy at the time also had reversed then-current DOJ policy; it stated that the DOJ “will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).

DOJ “misrepresents” EEOC position. In the ongoing executive branch controversy, DOJ attorneys filed a brief in the Supreme Court (which purports to represent the EEOC) urging the Justices to reverse the Sixth Circuit ruling that found Title VII protects a transgender funeral home employee, and others, from employment discrimination because of their failure to conform to sex stereotypes or because of their transgender and transitioning status.

In R.G. & G.R. Harris Funeral Homes, the DOJ is arguing (at least theoretically on behalf of the EEOC, despite the lack of any Commissioner’s or other agency official’s signature on the brief) that Title VII’s prohibition against discrimination “because of sex,” “does not bar discrimination because of transgender status.” Notably, Title VII requires the Attorney General to represent the EEOC, which interprets Title VII, at least for purposes of the Commission as established under that statute, in litigation before the Supreme Court. It will be interesting to see how this dynamic plays out in the Court’s decision.

Sexual orientation. In Altitude Express, an en banc divided Second Circuit opinion upended its own precedent to hold that Title VII prohibits sexual orientation discrimination—in this case, against a skydiving instructor who was allegedly fired because he was gay. The termination followed a complaint by a customer’s boyfriend that the instructor had touched the woman inappropriately and told her he was gay to excuse it.

After the employee sued over his termination, the district court found he had enough evidence to support his state-law claim for sexual orientation discrimination, but he failed to show he was discriminated against based on his sex for purposes of his Title VII claim, which failed on summary judgment. A Second Circuit panel affirmed, refusing to revisit Second Circuit precedent upon which the lower court’s ruling relied, explaining that it could only be overturned by the appeals court sitting en banc.

Precedent flipped. Doing exactly that, the full Second Circuit (13 judges) reversed its precedent and held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Among other things, the appeals court found that the most natural reading of Title VII’s prohibition on discrimination “because of sex” is that it extends to sexual orientation—because sex is necessarily a factor in sexual orientation. For example, amici argued the employee was fired because he is “gay” and not because he is “a man,” but this “word choice” does not change the fact that a gay employee is a man attracted to men, and the termination was based in part on the employee’s sex. Intent matters, not semantics.

The court also found support for its conclusion through the lens of gender stereotyping “because sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”

Old precedent stands. But in Bostock, the appeals court decided not to disturb precedent. Eleventh Circuit Judge Rosenbaum, joined by Circuit Judge Pryor, dissented from the decision to deny rehearing en banc of a panel decision affirming dismissal of the case. Emphasizing the number of people affected by the issue and the importance of giving it full review, Rosenbaum expressed disappointment that the Eleventh Circuit instead chose to rely on “39-year-old precedent” that she asserted was the equivalent of “an Edsel with a missing engine” and had been abrogated by the Supreme Court in Price Waterhouse.

The employee, who is gay, worked for the county as a child welfare services coordinator in the Juvenile Court. For more than 10 years he received good performance reviews and accolades, but this changed after he became involved with a gay recreational softball league in January 2013. He alleged that his participation in the league and sexual orientation were openly criticized, he was subjected to an internal audit, and he was ultimately terminated because of his sexual orientation and identity. The employee’s subsequent Title VII suit was dismissed, and he appealed.

With little review of the background facts other than to say that the employee alleged that the county discriminated against him based on his sexual orientation, a panel of the Eleventh Circuit, in a three-page decision, affirmed dismissal of his Title VII claims. The panel explained that it was foreclosed by the Circuit’s divided 2017 ruling in Evans v. Georgia Regional Hospital that Title VII’s prohibition against discrimination “because of sex” does not encompass discrimination based on sexual orientation. The panel explained that “under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.”

Transgender presentation. Below in R.G. & G.R. Harris Funeral Homes, 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 about 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.

Giving the EEOC a memorable victory, 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 sex discrimination under Title VII.

Revisiting Price Waterhouse? There is much at stake in these three cases, not the least of which is whether the arguably more conservative current Court could take this as an opportunity to revisit Price Waterhouse v. Hopkins, and perhaps undermine or obliterate its sex-stereotyping theory of discrimination, causing a major sea change.

Argument: Bostock and Altitude Express. “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” attorney Pamela S. Karlan (co-director of Stanford Law Schools Supreme Court Litigation Clinic), arguing for the employees in Bostock and Altitude Express, told the Justices. “The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.”

Nonconformity. Karlan, arguing that there is no analytic difference between this kind of discrimination and forms of discrimination already recognized by every court to have addressed them, cited the examples of men who are a effeminate rather than macho. “Like the discrimination here, that discrimination is because of non-conformity with an expectation about how men should behave,” she said. “The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity.”

Sex or sexual orientation? Echoing the words of the en banc Second Circuit, Kaplan said that it forces judges to result to “lexical bean-counting where they count up the frequency of epithets, such as ‘fag,’ ‘gay,’ ‘queer,’ ‘real man,’ and ‘fem,’ to determine whether or not discrimination is based on sex or sexual orientation.” She called that attempt futile “because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.”

Equal discrimination. Kaplan also asserted that the possibility that some employers may have policies denying employment opportunities to both gay men and lesbians does not change the unlawfulness of what was alleged by the employees here. “Labeling those policies under an umbrella phrase like ‘sexual orientation discrimination’ cannot hide the fact that such an employer is a double discriminator,” she argued. The employer discriminates against men who do not conform to a male stereotype, as well as against women who do not conform to an expectation about females.

Not what Congress had in mind? Justice Ginsburg asked Kaplan how she would answer the argument that back in 1964, Congress could not have had this on its mind because in many states, male same-sex relations were a criminal offense, and the American Psychiatric Association labeled homosexuality mental illness.

Et tu, harassment? Kaplan pointed to the words of the statute, adding that the High Court “has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964.” She called 1964 the “days Mad Men.” She balked at the notion that sexual orientation would have been reached by courts when most did not find sexual harassment actionable until the Supreme Court did in Price Waterhouse, where “this Court recognized that discrimination against a woman who cursed like a sailor, walked like a man, and didn’t wear makeup was reachable under Title VII.” Members of Congress would not have been thinking about women like Ann Hopkins (the plaintiff in that seminal case).

It’s all about men and women. Chief Justice Roberts asked Kaplan whether or not she agreed with Judge Posner’s statement that Title VII “should be read to encompass sexual orientation discrimination to ‘avoid placing the entire burden of updating old statutes on the legislative branch.’”

The attorney said she disagreed and that she didn’t think any updating is required here. “I think you should read the words as they were understood then, which is ‘men’ and ‘women.’ Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.”

“And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex,” Kaplan argued.

Same-sex policy. Carrying it a step further, Justice Roberts asked Kaplan what if the employer didn’t need to know the sex of the people involved, but rather, just has a policy against same sex? “So you don’t care whether the participants are women or men,” he continue. “If they’re the same, then that’s covered by the policy.”

“I think that’s no different than having a policy that says everyone should comply with the stereotype applicable to their sex,” Kaplan said. She pointed to one of the Court’s prior cases, where the policy on its face said you cannot guard someone of the opposite sex. “So a woman who seeks to guard a man is barred from that job; a man who seeks to guard a woman is barred from that job,” she elaborated. “Just put in instead of the word ‘guard,’ ‘date,’ and you get the same kind of rule here, which is a man who wants to date a man can’t do it, but a woman can, and a woman who wants to date a woman can’t do it.”

Kaplan stressed later that “Dothard against Rawlinson” was a disparate treatment case. “And so a male person who had wanted to guard someone at the Julia Tutwiler prison, the prison for women in Alabama, would have had a claim that he had been discriminated against because of sex. Now, he would have lost that claim but on BFOQ [bona fide occupational qualification] grounds, not on because of sex grounds,” she said.

Not trying to change the 1964 meaning of sex. During Kaplan’s rebuttal argument, Justice Alito said that the attorney was trying to change the meaning of what Congress and everybody understood sex to mean in 1964. Kaplan said she was not trying to change that at all. “I’m simply saying that if a man and a woman both wanted to sew and you fire the man who loves sewing and you don’t fire the woman who loves sewing, that’s discrimination pure and simple, sex discrimination.”

No they didn’t! Jeffrey M. Harris (Consovoy McCarthy Park PLLC) on behalf of the employers in the two cases, argued that Congress did not ban sexual orientation discrimination in Title VII. “That’s just as true today as it was in 1964,” he said.

“Mirror image” of Oncale. According to Harris, the Second Circuit in Altitude Express made a “core error” similar to the one that caused the High Court to reverse in Oncale v. Sundowner Offshore Servs., Inc. There, the Fifth Circuit held that same-sex harassment claims were categorically excluded from Title VII, he noted. “This Court correctly reversed and held that such claims may well be cognizable, as long as the plaintiff meets all requirements of the statute, especially what this Court called the ‘critical inquiry into whether members of one sex were being treated worse than members of the other sex.’” Harris said that Altitude Express is the “mirror image” of Oncale.

“Whereas the lower courts in Oncale adopted a categorical exclusion, the Second Circuit adopted a rule of per se inclusion in which plaintiffs alleging sexual orientation discrimination receive a free pass around the critical inquiry into whether men and women are being treated differently because of their sex,” according to Harris. “In short, the Second Circuit simply changed the ultimate question from sex to sexual orientation. But because both men and women may have same sex attractions or partners, a stand-alone allegation of sexual orientation discrimination cannot, without more, show discriminatory treatment.”

Parsing out differences. Trying to put Harris’ argument into context, Justice Ginsburg posed this scenario: “Employer looks at a man who applies and says: One of my hobbies is sewing. And the employer says: That’s an effeminate hobby. You may be gay. You’re — I’m not hiring you.” Justice Ginsburg asked if that is a mixed motive case. “Are we going to be trying somehow to parse that there’s some sort of substantial legal difference between the belief that you’re too effeminate or that a lesbian is too macho, whichever, from you’re attracted to the other sex? How do you tease that out?”

Harris said he did not disagree that there would be tough cases at the margins. The problem is that the Second Circuit just glossed over these hard questions, he stressed.

Glossing over BFOQ? Justice Sotomayor picked up on “glossing over” too, asking Harris, “aren’t you glossing over the BFOQ, meaning, what it seems like you’re confusing is three concepts; Title VII has causation and injury. Not hiring, not firing, that’s the injury.” The question is what caused that: “Being too effeminate, that’s a sexual trait; being attracted to, if you’re a man, to another man, that’s a sexual trait. It is caused by those two things.”

Continuing, Justice Sotomayor said: “Aren’t then we moving to the third question, which is, is there a reason independent of your religious belief or your innate hatred and invidious discrimination for why you’re treating this person differently? And if there is, you have a BFOQ. You don’t have to hire them. You can fire them.”

Why are they hard cases? “But if there isn’t, they’re doing their job, and they’re not bothering you, and they are not bringing their boyfriend or girlfriend, if it’s the opposite sex, to a function to your private home because you don’t want them there or whatever else is offensive to you, they’re just working,” the Justice said. “So I don’t understand why those are hard cases.”

Harris replied that as the High Court has emphasized in cases such as Johnson Controls, “the BFOQ exception has been interpreted extremely narrowly,” He said that it’s important, as this Court emphasized in Oncale several times, “the need to ensure strict compliance with all requirements of the statute, including the discrimination element, because once you find discrimination, it gets very hard to make out the BFOQ.”

Argument: R.G. & G.R Harris Funeral Homes. Taking a tack similar to the ones that the employees navigated in the sexual orientation cases, David D. Cole (American Civil Liberties Union Foundation), arguing on behalf of the transgender employee, said that in firing her for failing to conform to its owner’s explicitly stated stereotypes about how men and women should behave, the funeral home “discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely.”

“It can’t be that Ann Hopkins would lose her case on the same facts were she transgender,” according to Cole.

Sex assignment at birth. Cole also argued that Harris Homes fired her for identifying as a woman only because she was assigned a male sex at birth. “In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.” This, according to Cole, is disparate treatment on the basis of sex.

Equal discrimination doesn’t cut it. Third, Cole observed that the funeral home fired the employee for, “in its owner’s words, ‘changing her sex.’” He called that “discrimination in the same way that firing someone for changing their religion would be religious discrimination.” The fact the funeral home “would fire both transgender men for being insufficiently feminine and transgender women for being insufficiently masculine is, as the government concedes, two acts of sex discrimination, is not a defense.”

No redefinition required. Cole also asserted that none of the arguments ask that the High Court redefine update sex. “They assume, arguendo, that sex means at a minimum sex assigned at birth based on visible anatomy or biological sex.”

Analyzing the bathroom question. Chief Justice Roberts queried whether that argument holds up when you get to specific work requirements, turning to the bathroom question: “In other words, if the objection of a transgender man transitioning to woman is that he should be allowed to use, he or she, should be allowed to use, the women’s bathroom now, how do you analyze that? I understand how you analyze status as it were, maybe that’s hiring and firing on the basis—treating it as just on the basis of sex, but when you get to specific policies, does that hold true?”

Clarifying, the Chief Justice later added, “So if the objection of the transgender individual is that I want to use a bathroom consistent with my gender identity, rather than biological sex, do you analyze it as—the affecting based on the transgender status or do you analyze it on the basis of biological sex?”

Based on sex or transgender status? After explaining that what the Justice referred to as “biological sex” is more accurately “gender assigned at birth,” Cole said that this case asks whether when someone fires someone because they’re transgender or because they fail to conform to sex-based stereotypes, is that because of sex? He said that “Obviously, a sex-specific restroom policy is because of sex.”

“So when it’s analyzed on the basis of sex, there’s no problem, but when it’s analyzed on the basis of transgender status, it presents a whole different case,” the Chief Justice replied.

Injury matters. Cole disagreed, saying, “anybody can challenge a sex-specific rule. A transgender person can challenge a sex-specific rule. A non-transgender person can challenge a sex-specific rule. What this Court said in Burlington Northern and in Oncale is that to decide whether something discriminates that refers to sex is you have to ask whether—not just whether it differentiates, but whether it differentiates in a way that injures,” he explained. “And you answer that question by asking would a reasonable person in the plaintiff’s position experience a significant or trivial harm?”

The hard question. Cutting to the hard question, Justice Sotomayor said, you “have a transgender person who rightly is identifying as a woman and wants to use the women’s [bathroom], rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine.” The Justice accepted that.

“But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom,” Sotomayor continued. “That’s why we have different bathrooms. So the hard question is how do we deal with that?” What in the law will guide judges in balancing those things?

Although Cole replied that this is not the question in this case, Sotomayor said, “once we decide the case in your favor, then that question is inevitable.”

Justice Sotomayor continued that it may not be, “if there’s single-sex bathrooms, there might be one answer, meaning what harm would the other women—reasonable woman feel if a man is using a single sex bathroom, might be another if it is two locker rooms, men and women, girls and boys and who walks in is something you can’t control. That’s what the question is.”

Don’t have to treat men as women. “Treating women and men equally does not mean employers have to treat men as women,” according to John J. Bursch (Bursch Law PLLC) who argued on behalf of the funeral home. “That is because sex and transgender status are independent concepts.”

Title VII gives the employer the ability to consider how enforcement of a sex-specific dress code would impact employees and grieving clients, Bursch said. “But the Sixth Circuit imposed a new restriction, and its holding destroys all sex-specific policies and even BFOQs while undermining the protections that Title VII provides.”

If you accept that sex means biological males and females, then the funeral home wins, according to Bursch.

But-for test won’t fly. The attorney argued that Cole has redefined sex to include transgender status in two respects. First, he has advanced a but-for test that “would mean that a women’s overnight shelter must hire a man who identifies as a woman to serve as a counsellor to women who have been raped, trafficked, and abused and also share restroom, shower, and locker room facilities with them.” This is because “but for the man’s sex, he would be allowed to hold that job and to use those facilities,” Bursch explained.

This purportedly simple test “does not get to the ultimate inquiry of whether men are being treated less favorably than similarly situated women because of sex,” Bursch asserted. “That does not reflect the original public and legal meaning of a statute promoting women’s equality.”

Stereotyping. Turning to stereotyping, Bursch said that it “is always illegal stereotyping to apply sex-specific policies based on biological sex.” That’s why Cole was wrong to say that this case isn’t about showers and overnight facilities and sports. “Every single one of those is impacted if you’re talking about a sex-specific policy,” Bursch asserted.

Sex-based differentiation. “What Title VII says is that sex-based differentiation is not the same as sex discrimination,” Bursch continued. “And that’s why Ms. Karlan agreed that this Court’s sex-specific dress policy doesn’t violate Title VII. And though Congress has added classifications to cover transgender status in other statutes, it has rejected more than a dozen proposals here.”

Different traits, different definitions. For his part, arguing on behalf of the government, Solicitor General Noel Francisco argued that this is not a close textual case. First, sex and gender identity, like sex and sexual orientation, are different traits; they have different definitions.

Not similarly situated. Turning to the standard for determining discrimination against somebody because he’s a man or because she’s a woman, Francisco said that the threshold question is always are the two people that you’re comparing actually similarly situated?

The employees “assert that a transgender man is, in fact, similarly situated to a cisgender man, just like they assert that a gay woman is similarly situated to a straight man,” Francisco said “But that is manifestly not true because, with respect to the transgender issue, the difference between a transgender man and cisgender man is that one identifies with his biological sex and the other identifies with the opposite of his biological sex. And that is a very meaningful difference that is not grounded on stereotypes. It’s simply grounded on a difference between a transgender man and a cisgender man.”