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.
Jeffrey Phillips phoenix 