U.S. Department of Justice Argues Title VII Does Not Apply to Gender Identity Discrimination in Brief to Supreme Court

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 One year earlier, it rescinded a policy memorandum regarding gender identity discrimination and Title VII issued during the Obama administration.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 Under new management in October 2017, the DOJ rescinded this memorandum.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.

The DOJ memorandum cites two federal appellate decisions, only one of which supports the DOJ’s view. Ten years earlier, an appellate court affirmed the dismissal of a gender identity discrimination lawsuit. Using language that already seems archaic, the court held that “transsexuals are not a protected class for purposes of Title VII.” Etsitty v. Utah Transit Auth., 502 F. 3d 1215, 1217 (10th Cir. 2007). The DOJ also cited a dissenting opinion in an April 2017 decision reversing the dismissal of a gender identity discrimination lawsuit. Hively v. Ivy Tech Comm. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017).

About five months after the DOJ issued its memorandum, the Sixth Circuit ruled in the R.G. & G.R. case. 884 F.3d 560 (6th Cir. 2018). The court specifically cited Price Waterhouse in its ruling, which reversed a lower court’s order granting summary judgment to the employer. The employer appealed to the Supreme Court, which has yet to decide whether to grant certiorari. The DOJ filed a brief opposing certiorari, partly based on two other cases awaiting a decision on certiorari that deal with sexual orientation discrimination: Altitude Express Inc. v. Zarda and Bostock v. Clayton Cty., Ga.

The employment attorneys at Phillips & Associates advocate for New York City job applicants, employees, and former employees, representing them in claims for gender identity discrimination and other unlawful workplace practices. To schedule a free and confidential consultation to discuss your case, please contact us today at (212) 248-7431 or online.

More Blog Posts:

Courts Order Federal Government to Produce Documents in Lawsuits Alleging Gender Identity Discrimination, New York Employment Attorney Blog, September 24, 2018

Lawsuit Alleging Gender Identity Discrimination Becomes Entangled with Lawsuit Seeking to Invalidate Federal Gender Identity Policies, New York Employment Attorney Blog, May 16, 2018

Federal Courts Block White House Policy Barring Military Service Because of Gender Identity in New York and Throughout the Country, New York Employment Attorney Blog, January 18, 2018

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