In 2017, the Trump administration, through the Department of Justice (DOJ), reversed the Obama-era policy which used Title VII to protect transgender employees from discrimination. Attorney General Jeff Sessions issued a memorandum to U.S. Attorneys, stating, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”
Across the country, federal courts have been hearing cases regarding this issue. At least five federal appeals courts have said gender identity is covered under Title VII’s protection against sex discrimination. However, in recent years, there has been a divide in federal appeals courts about sexual orientation protection. The Seventh Circuit and the Second Circuit split from other appeals courts and held that sexual orientation should be protected under the definition of sex discrimination.
In October 2019, the US Supreme Court will consider a trio of cases[1] that review the question of whether Title VII includes protections for gay, lesbian, bisexual, and transgender workers. One of the cases began right here in Georgia, Bostock v. Clayton County, Georgia. Bostock, a gay man, employed as the Child Welfare Services Coordinator for the Clayton County Juvenile Court System, alleged that his former employer, Clayton County, Georgia, fired him because of his sexual orientation. He claimed that the County terminated his employment because of his sexual orientation after the County learned of his sexual orientation. The district court dismissed his lawsuit for failure to state a claim. Bostock appealed, and the US Court of Appeals for the Eleventh Circuit affirmed the lower court.
The DOJ submitted an amicus brief to The Supreme Court making a contrary argument to the Equal Employment Opportunity Commission argument put forward on behalf of former funeral home director Aimee Stephens, who was allegedly fired after she informed her boss she was transitioning (male to female). (R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, et al. No. 18-107 (S.C. Aug. 16, 2019). The Sixth U.S. Circuit Court of Appeals previously ruled in Harris that the employer in the case violated Title VII by firing an employee because of her failure to conform to sex stereotypes, as well as her transgender status. The Funeral Homes is appealing the Sixth Circuit ruling.
The DOJ’s argument against Title VII protections for LGTBQ employees is that Congress did not intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act, and the law’s ban on discrimination because of “sex” referred to unequal treatment of men and women in the workplace. The Department’s brief to the Supreme Court also argues that Congress has not passed any language to include gender identity in the statute. “Under this Court’s precedent, proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex,” the Justice Department said in its brief.
Given the Agencies’ diametrically opposed legal positions, it is no surprise that Sharon Fast Gustafson, General Counsel for the U.S. Equal Employment Opportunity Commission, did not sign the DOJ’s brief. The two agencies have been at odds over the issue of whether Title VII protects transgender employees on the basis of their transgender status. In a 2018 amicus brief, the EEOC, also argued to the Fifth U.S. Circuit Court of Appeals that an employee’s belief that workers are protected from discrimination based on their sexual orientation can create retaliation protections — regardless of whether Title VII includes those protections. The Commission’s position seems to be that a good faith complaint of sexual orientation or transgender discrimination is “engaging in a protected activity,” thus the anti-retaliation protections of Title VII would apply.
Clearly this issue is a very sensitive and hot legal topic in employment law. Employers should consult an employment lawyer to determine the best policy for its workforce.
Please contact Chandra Davis at cdavis@theemploymentlawsolution.com for more information regarding Title VII updates.
[1] Bostock v. Clayton County, Georgia (17-1618), Altitude Express, Inc. v. Zarda (17-1623), and R.G. & G.R Harris Funeral Homes v. EEOC (18-107).
