U.S. Supreme Court to Hear Title VII Case Alleging Discrimination on the Basis of Gender Identity

New York City discrimination laws prohibit employers from taking adverse actions against employees and job applicants because of a wide range of factors. The laws of New York state also provide broad protection against discrimination in the workplace. At the federal level, Title VII of the Civil Rights Act of 1964 only identifies five protected categories, including sex. While municipal and state laws in New York City offer protection against discrimination based on gender identity, gender expression, and sexual orientation, federal courts are split on whether Title VII’s ban on sex discrimination implicitly includes these categories. The U.S. Supreme Court granted certiorari to several cases in April 2019 that raise these questions. Two cases involve sexual orientation discrimination, and involve conflicting circuit court decisions. A third case involves gender identity discrimination. No circuit split exists, because this is reportedly the first such case to reach the federal appellate level. The Supreme Court agreed to hear the case anyway.

New York City’s antidiscrimination law prohibits discrimination on the basis of gender, and expressly includes “actual or perceived…gender identity and gender expression” in its definition. N.Y.C. Admin. Code § 8-102. At the state level, gender identity and gender expression are protected categories in their own right. N.Y. Exec. L. § 296(1)(a). Federal law identifies a cause of action for discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Congress and the courts have expanded the definition of “sex discrimination” to include matters like pregnancy discrimination and sexual harassment.

The Equal Employment Opportunity Commission (EEOC) has found that discrimination on the basis of sexual orientation, gender identity, and gender expression falls under Title VII’s prohibition on sex discrimination. This is based in part on a Supreme Court case that ruled that discrimination on the basis of “sex stereotypes,” meaning stereotypes about how member of a certain sex should look or act, violates Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The EEOC’s interpretation of Title VII has not caught on in most federal courts.

On April 22, 2019, the Supreme Court agreed to hear an appeal from a Sixth Circuit decision that reinstated a Title VII claim for gender identity and gender expression discrimination. The complainant alleged that the defendant terminated her employment after she informed it of her intention to transition from male to female. The EEOC brought suit on her behalf.

The defendant argued that its employee dress code was not discriminatory, because it placed an equal burden on male and female employees. It argued in the alternative that accommodating the complainant would violate its “sincerely held religious beliefs.” The district court granted summary judgment for the defendant on both of the defendant’s claims.

The Sixth Circuit reversed the district court order and remanded the case. It held that the defendant’s alleged actions could constitute sex discrimination in violation of Title VII, and that the case should therefore proceed to trial. It cited Price Waterhouse in support of that finding. It also rejected the defendant’s religious freedom arguments, finding that enforcement of Title VII is not an infringement of religious rights. The defendant appealed to the Supreme Court, which has scheduled arguments for October 2019.

Phillips & Associates’ employment lawyers help New York City employees and job seekers to assert their rights in claims for unlawful workplace practices under federal, state, and city law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with a member of our team.

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