Did an Employer Illegally Discriminate “Because of Sex” When It Discharged an Employee Because of the Employee's Transgender Status?
Did an Employer Illegally Discriminate “Because of Sex” When It Discharged an Employee Because of the Employee's Transgender Status?
In 2013, William Stephens (now Aimee Stephens), a biological male at birth, informed his employer, Harris Funeral Homes, that Stephens sought to transition to a female. As part of the transition, Stephens planned to wear a female uniform at work. Harris then fired Stephens. Stephens sued, arguing that Harris’s action violated Title VII’s prohibition on discrimination “because of sex.”
Docket No. 18-107
Argument Date: October 8, 2019
From: The Sixth Circuit
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “because of sex.” The Supreme Court interpreted this phrase to also prohibit employers from discriminating based on sex stereotypes. This case tests whether discrimination based on transgender status violates Title VII’s prohibition on discrimination “because of sex,” and whether it violates the ban on sex stereotyping.
Does discrimination against an employee because of the employee’s transgender status violate the prohibition on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964?
Harris Funeral Homes, Inc., is a family-owned, for-profit corporation that operates funeral homes at several locations in Michigan. Harris has a written, sex-specific dress code for its employees who interact with the public. The code requires male employees to wear suits and ties and female employees to wear skirts and business jackets. Harris administers its dress code based on its “employees’ biological sex,” and not on their gender identity.
William Stephens worked at Harris from 2007 to 2013, first as an apprentice and later as a funeral director and embalmer. Stephens “was born biologically male” and presented as a male when he began working at Harris.
In 2013, Stephens submitted a letter to Harris stating that she had “struggled with ‘a gender identity disorder’ her entire life,’” “ha[d] ‘decided to become the person that her mind already is,’” and “intended to have sex reassignment surgery.” Stephens wrote that after a planned vacation, she would return to work as Aimee Stephens. She indicated that she planned to comply with Harris’s dress code for female employees.
Several weeks later, before Stephens’s planned vacation, Harris’s principal owner, Thomas Rost, fired her. Rost told Stephens that “this is not going to work out.” Rost later said that “Stephens wearing a female uniform in the role of funeral director would have been distracting to clients mourning the loss of their loved ones, would have disrupted their grieving and healing process, and would have harmed clients and business and business relationships.” Rost also said that he would not have fired Stephens if she would have “present[ed] as a woman outside of work, so long as she would have continued to conform to the dress code for male funeral directors while at work.” Harris offered Stephens a severance package, but she declined to take it.
Stephens filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that Harris fired her because of her “sex and gender identity, female.” The EEOC’s Detroit Field Office issued a letter finding reasonable cause to believe that Harris had discharged Stephens based on sex and gender identity in violation of Title VII.
The EEOC sued on behalf of Stephens. The district court dismissed the gender-status claim, holding that Title VII does not cover gender-status discrimination. It then granted summary judgment in favor of Harris, concluding that despite evidence of cognizable discrimination (based on sex stereotyping), Harris was entitled to a religious “exemption from Title VII” under the Religious Freedom Restoration Act (RFRA).
The EEOC appealed. The United States Court of Appeals for the Sixth Circuit reversed, ruling that Stephens’s claim of gender-identity discrimination was cognizable as both a sex-discrimination claim and a sex-stereotyping claim in violation of Title VII, and that the RFRA was not a defense. (While the appeal was pending, Attorney General Sessions issued a memorandum stating that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se.” The memorandum said that “the Department of Justice will take that position in all pending and future matters.” The memorandum withdrew an earlier memo issued by Attorney General Holder that took the contrary position.)
This appeal followed.
After granting certiorari, the Court directed that Stephens comply with the briefing rules for petitioners, and that Harris Homes comply with the briefing rules for respondents. Although the EEOC initially supported Stephens, the government is now supporting Harris Homes, and so the Court ordered the government to comply with the briefing rules for the respondents.
This case tests the breadth of Title VII’s prohibition on discrimination “because of sex,” and asks whether it covers discrimination because of an employee’s transgender status. In particular, the case tests whether discrimination because of transgender status is impermissible discrimination “because of sex” under Title VII; and it tests whether discrimination by transgender status is a form of impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which interprets Title VII to also ban sex stereotyping. The parties wrangle over both points. (The EEOC, through the government, argues on behalf of Harris. Because their arguments are substantially similar, we’ll refer to them together simply as “Harris.”)
Stephens argues first that Title VII’s ban means that an employee’s discharge is impermissibly “because of sex” where “but for the employee’s sex,” the employee would not have been fired. (In other words, “[s]ex need not be the sole cause, as long as it is a cause, for the decision.”) Stephens says that she easily satisfies this test, because (1) Harris would not have fired her for living as a woman if she had been assigned a female sex at birth, (2) Rost repeatedly said that he fired Stephens because she “was a man,” and (3) Harris’s firing of Stephens for “attempting to change” her sex is sex discrimination, just as an employee’s termination for changing religion would be religious discrimination. For these reasons, Stephens contends that even if gender identity is not encompassed within “sex” under Title VII, her sex was nevertheless the “but for” cause of her termination.
Stephens argues next that Harris violated Title VII by firing Stephens based on her failure “to conform to its sex-based stereotypes about how men and women should identify, appear, and behave.” She says that Harris insisted than any “male” employee “should look like a man,” and that any “female” employee “should look like a woman,” and that it fired her because she looked “too masculine for a woman and too feminine for a man.” Moreover, Stephens contends that any discrimination based on transgender status necessarily stereotypes based on sex, because such discrimination assumes “that someone assigned a particular sex at birth will identify, look, and act in ways conventionally associated with that sex.” She claims that disallowing sex-stereotype claims by transgender individuals, but allowing them by everyone else, would confuse the lower courts and “risk undermining Title VII’s longstanding prohibition on discrimination based on sex stereotypes.”
Third, Stephens argues that Harris’s speculation about Congress’s understanding of Title VII in 1964—which, according to Stephens, would “carv[e] out” an exception to Title VII for transgender individuals—should not trump the plain text. She says that Title VII already contains certain exceptions in its plain text (for example, for an exception based on a “bona fide occupational qualification”), but it does not contain an exception for transgender discrimination. As to Congress’s original understanding of Title VII, she claims that “[t]his Court has repeatedly found violations of Title VII in circumstances that neither Congress nor the general public would likely have anticipated at the time the law was passed.” She contends that other congressional actions before or after the passage of Title VII do not provide a justification for excluding transgender individuals, and that even if they do, she still has a Title VII claim for the reasons in her first and second arguments, above.
Finally, Stephens argues, contrary to Harris, that this case does not require the Court to rule on the lawfulness of sex-specific policies like dress codes or sex-specific restrooms. According to Stephens, that’s because Harris did not fire her for violating its dress code; it fired her because she is transgender, and because she does not conform to the company’s stereotypes based on sex. Stephens says that other sex-specific policies are simply not before the Court in this case.
In response, Harris argues first that the original public meaning of “sex” under Title VII was biological sex, not transgender status. According to Harris, that means that Title VII simply prohibits employers from treating one sex less favorably than the other sex. Harris claims that it didn’t do that here—because it would have treated a woman who sought to transition to a man the same way—and therefore did not violate Title VII. (Harris contends that it does not matter that it would not have fired a female director who—like Stephens—sought to dress as a female. According to Harris, that’s the wrong comparison. Instead, the Court should compare Harris’s treatment of Stephens to the way it would have treated a female who sought to dress as a male.)
Harris argues next that it did not impermissibly stereotype based on Stephens’s sex in violation of Price Waterhouse. According to Harris, that’s because its treatment of Stephens was based on actual physical differences between men and women (and not based on a stereotype), and because it did not treat Stephens differently than it would have treated a similarly situated woman transitioning to a man. (Harris notes that its dress code itself is not contested here.) Harris says that its position does not mean that transgender persons are not covered by Title VII; instead, its position simply means that transgender persons are protected from sex discrimination “just the same as everyone else.” That is, they cannot be treated less (or more) favorably than the other sex.
This case and its companions, Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda, test the reach of Title VII’s ban on discrimination “because of sex,” and whether that ban extends to discrimination on the basis of transgender status and sexual orientation. While the cases have some technical differences, they have very similar implications.
Most obviously, these cases matter deeply to the estimated 11.3 million LGBTQ adults in the United States. According to 21 states and the District of Columbia as amici, employment discrimination against LGBTQ individuals runs rampant. Forty-two percent of gay, lesbian, and bisexual individuals have faced employment discrimination based on their sexual orientation, ninety percent of transgender individuals have experienced harassment or mistreatment in the workplace, gay and bisexual men earn eleven to sixteen percent less than similarly qualified heterosexual men, and the unemployment rate for transgender individuals is three times the national average.
But at the same time, only 21 states and the District of Columbia expressly ban discrimination on the basis of sexual orientation and gender identity by statute or regulation. (A few others provide some form of protection by way of agency interpretation or court ruling.) That means that LGBTQ individuals lack protection against employment discrimination in about one-half of the states. These individuals’ only protection is Title VII. If the Court declines to read Title VII to protect LGBTQ individuals, their only protection against employment discrimination will go away.
On the other hand, the employers, the government, and their amici argue that the plaintiffs’ reading of Title VII would so “expand” the concept of “sex” that employers would not know how to comply, and courts would not know how to enforce it. Moreover Harris and its amici argue that the plaintiffs’ reading of Title VII could mean the end of things like sex-specific restrooms and locker-rooms, and this could actually undermine Title VII by threatening other sex-specific practices and institutions that are designed to provide an equal playing field between men and women.
There are a couple things to watch. First, by relying on sex-stereotyping claims, the plaintiffs in these cases give the Court a way to rule in their favor without necessarily reading “sex” to include sexual orientation or transgender status. But it’s not clear that this approach will attract any justice who isn’t already inclined to read “sex” that way and thus rule in favor of the plaintiffs. More bluntly, it’s not clear that this approach will attract any of the traditional conservatives on the Court.
Next, in response to the plaintiffs’ sex-stereotyping claims, the employers and the government rely heavily on an “original understanding” argument—that Title VII’s ban on discrimination “because of sex” was originally understood to ban only discrimination that disadvantages a person of one sex as compared to a similarly situated person of the opposite sex. This argument is designed to undermine the plaintiffs’ sex-stereotyping claims, which are based on Court interpretations of Title VII long after the statute was originally enacted. But it’s not clear that the employers’ original understanding arguments will attract any justice who isn’t already inclined to read Title VII to include a ban on sex-stereotyping. More bluntly, it’s not clear that this approach will attract any traditional progressives on the Court.
If all this is right, we can expect that most or all of the justices will come to these cases already leaning (probably heavily) one way or the other. And when the decisions come out, we can expect a sharply—and ideologically—divided Court.
Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at firstname.lastname@example.org or 312.386.2865.
PREVIEW of United States Supreme Court Cases 47, no. 1 (October 7, 2019): 24–28. © 2019 American Bar Association
In Support of Petitioner R.G. & G.R. Harris Funeral Homes, Inc. and Federal Respondent Equal Employment Opportunity Commission
In Support of Respondent Aimee Stephens