U.S. Supreme Court Justices Asked to Decide if Title VII Shields Against Gender Identity Discrimination

August 06, 2018

The Supreme Court has been again asked to determine the scope of Title VII’s prohibition against discrimination based on "sex," this time, whether the statute stands as a shield against employment discrimination based on gender identity and transgender status. The petition for certiorari in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC follows a petition filed in June, asking the Justices to determine whether Title VII protects against sexual orientation discrimination. While these cases are pending, we recommend all employers contact SESCO before taking any action against applicants or employees claiming LGBTQ protection. We also recommend employers have annual sexual harassment training for employees.

Gender transition. The employee is a transgender woman who was "assigned male at birth." She was hired in 2007 and presented as a man until July 2013, when she informed her employer that she "decided to become the person that [her] mind already is." She explained that she intended to have sex reassignment surgery and, as the first step, would live and work full-time as a woman for one year. The funeral home fired her approximately two weeks later because she would no longer dress like a man under the funeral home’s dress code, which required all public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and jackets. The funeral home provided all male employees who interacted with clients with free suits and ties, but until October 2014—after the Equal Employment Opportunity Commission (EEOC) filed this suit—did not provide its female employees with any sort of clothing or clothing allowance.

Big win for EEOC. In a huge victory for the EEOC, the Sixth Circuit ruled in March 2018 that discrimination against employees, either because of their failure to conform to sex stereotypes or because of their transgender and transitioning status, is illegal under Title VII. The appeals court thus reversed the district court’s contrary decision, and held the employee's termination was unlawful.

The Religious Freedom Restoration Act did not provide the funeral home owner with any relief, as continuing to employ the funeral director would not, as a matter of law, substantially burden his religious exercise. Even if it did, enforcing Title VII here was the least restrictive means of furthering the compelling government interest in combating and eradicating sex discrimination.

EEOC-DOJ battle. Notably, the employee sought to intervene in the Sixth Circuit case due to concerns that changes in the policy priorities of the U.S. government might prevent the EEOC from fully representing her interests in the case. The Trump administration’s Department of Justice (DOJ), which ordinarily would defend the case if the High Court grants certiorari, is at odds with the EEOC. According to the Trump Administration DOJ, Title VII protections do not extend to discrimination based on sexual orientation or gender identity. The EEOC, however, is an independent agency, which presumably is at liberty to form its own interpretation Title VII, a statute with which it is charged to enforce.