The U.S. Supreme Court is considering whether to hear a dispute over whether the provisions of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of sex apply to gender identity and gender expression discrimination. New York City employment discrimination attorneys may rely on the New York City Human Rights Law, but elsewhere, the extent of legal protection is far less clear. The case before the U.S. Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, is an appeal from a Sixth Circuit ruling in favor of an employee who alleges that her employer fired her shortly after she informed them that she was transgender. The U.S. Department of Justice (DOJ) filed a brief with the Supreme Court in October 2018 that sides with the employer. One year earlier, it rescinded a policy memorandum regarding gender identity discrimination and Title VII issued during the Obama administration.
Title VII states that an employer commits an unlawful employment practice when they discriminate against an individual “because of such individual’s…sex” or certain other factors. 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has identified “sex stereotyping”—”evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group”—as a form of sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). The Equal Employment Opportunity Commission (EEOC) expressly identified “discriminat[ing] against someone because the person is transgender” as a violation of Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
Former Attorney General Eric Holder issued a memorandum in December 2014 taking the position that Title VII’s provisions on sex discrimination in employment apply to discrimination on the basis of gender identity and gender expression. Under new management in October 2017, the DOJ rescinded this memorandum. It replaced it with a new memorandum stating that “‘Sex’ is ordinarily defined to mean biologically male or female,” and that discrimination “because of sex” therefore does not include gender identity and expression.