It’s been a busy month for those keeping an eye on one of the most pressing questions in employment law: whether Title VII, which prohibits sex discrimination in employment, also inherently prohibits discrimination on the basis of gender identity.
Last week, the US Department of Justice argued to the Supreme Court that workplace discrimination on the basis of gender identity is legal. However, the Department requested the Court delay deciding whether to hear an appeal on this issue until it decides a similar question: whether Title VII prohibits discrimination on the basis of sexual orientation.
In contrast, Victoria Lipnic, Chair of the Equal Employment Opportunity Commission, has said she hopes the Supreme Court takes up a case on the issue of whether Title VII’s prohibition of sex discrimination forbids discrimination on the basis of an employee’s gender identity. This position diverges from the position articulated by the Department of Justice:
“There’s a lot of litigation going on on this, we have lots of people who have filed charges with the EEOC that we have taken in,” Lipnic said. “I’m always in favor of clarity.”
The DOJ’s brief argued against the Sixth Circuit’s March ruling that Title VII’s bar on discrimination “because of … sex” blocks employers from firing workers based on their gender identities. The ruling revived a suit the EEOC filed for former Harris funeral director Aimee Stephens alleging the company violated the law by firing her after she started living as a woman.
The brief reversed the EEOC’s lower court stance that Title VII protects transgender workers from discrimination. Although the EEOC argues its cases at the district and circuit courts, the DOJ speaks for the agency at the Supreme Court . . .
The EEOC voted unanimously in 2012 to adopt its stance that Title VII covers gender identity. Lipnic, who voted for coverage, told Law360 that she doesn’t know whether the EEOC will revisit its interpretation of the statute if President Donald Trump’s nominees to two commission vacancies are confirmed. She had earlier said she’ll be keeping a close eye on what the high court says . . .
The DOJ’s brief urges the high court to wait on the funeral home’s petition until it decides whether to answer a related question about whether Title VII covers sexual orientation. If it opts to take up that issue, the justices should grant cert to Harris, the DOJ said. If it doesn’t, the justices should not, it said.
Meanwhile, congressional leaders speaking on behalf of over 200 members of the United States House of Representatives have strongly signaled a desire to move forward with the Equality Act in the next Congress. The Equality Act seeks to expressly add sexual orientation and gender identity to Title VII’s protected characteristics.
Watch this space: these developments have been happening quickly, and we will continue to cover what this all means for employers as more information becomes available.