New York City’s anti-discrimination statute protects workers against discrimination based on gender identity and gender expression, but these protections are far less certain in other jurisdictions and under federal laws. The Equal Employment Opportunity Commission (EEOC) has taken the position that the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 cover gender identity discrimination, and some federal courts have also reached this conclusion. Other courts have specifically rejected this view. One federal district court took the unusual step of rejecting a gender identity discrimination claim on the basis of the federal “religious freedom” statute. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2:14-cv-13710, order (E.D. Mich., Aug. 18, 2016). While the case is likely to be reversed on appeal, it is important to understand the development of the law on this issue.
Title VII prohibits employment discrimination on the basis of various factors, including sex. 42 U.S.C. § 2000e-2(a). The Supreme Court has held that an employer engages in unlawful sex discrimination when it makes decisions based on “sex stereotyping,” which includes “evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). This decision has influenced numerous cases dealing with gender identity discrimination.
The EEOC has generally taken the view that Title VII’s prohibition on sex discrimination includes gender identity. See Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The Sixth Circuit Court of Appeals, whose jurisdiction includes the court that decided R.G. & G.R. Harris Funeral Homes, has held that Price Waterhouse “eviscerated” narrower interpretations of “sex discrimination” under Title VII. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); see also Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).