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Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

Posted on: October 31st, 2018 by Art Leonard No Comments

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

Funeral Home Wins Summary Judgment Motion in Transgender Discrimination Case with RFRA Defense

Posted on: August 20th, 2016 by Art Leonard No Comments

U.S. District Judge Sean F. Cox ruled on August 18 that a funeral home that discharged a transgender funeral director because of her intention to dress according to the employer’s dress code for women was not liable for sex discrimination under Title VII of the Civil Rights Act of 1964. The ruling, granting the employer’s motion for summary judgment, stemmed from the court’s conclusion that the employer prevailed on a religious free exercise defense raised under the federal Religious Freedom Restoration Act (RFRA), because the plaintiff in the case, the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, had failed to show that requiring the employer to allow the employee to use the approved female outfit was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping discrimination in the workplace.  The case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 U.S. Dist. LEXIS 109716, 2016 WL 4396083 (E.D. Mich.).

Importantly, Judge Cox made clear in his opinion that had the employee, Amiee Stephens, sued the funeral home on her own behalf, the funeral home would not have been able to raise the RFRA religious freedom defense, and she would most likely have won her Title VII case. Within the 6th Circuit (the states of Michigan, Ohio, Kentucky and Tennessee), the controlling circuit precedent states that a RFRA defense may only be raised in a case where “the government” is either the plaintiff or the defendant.

There are similar controlling precedents in the 7th and 9th Circuits, according to the opinion in the 6th Circuit case on which Judge Cox relied, General Conference of Seventh-Day Adventists v. McGill, 617 F.3d 402 (2010).  In the 2nd Circuit, which includes New York, there is a contrary precedent by a three- judge panel which has been questioned by a different three-judge panel, so the issue is a bit muddled.  The Supreme Court has never made clear whether RFRA is so limited in employment discrimination cases, but in the Hobby Lobby v. Burwell case, in which the Court ruled that business corporations may claim protection from government actions under RFRA, Justice Samuel Alito wrote for the Court in dicta (non-precedential language) that an employer would not be able to rely on RFRA to defend against a Title VII race discrimination charge.  He made this statement in response to Justice Ruth Bader Ginsberg’s statement in her dissent that the majority’s approach would endanger the enforcement of Title VII and other anti-discrimination laws.  Alito’s statement did not mention any distinction between cases brought by the EEOC and cases brought by individual employees.

Aimee Stephens – then known as Anthony Stephens – was hired by the Harris Funeral Home in October 2007. Stephens was identified as male on the Funeral Home’s employment records.  Stephens worked as a funeral director and embalmer for nearly six years under that name.  On July 31, 2013, Stephens sent a letter to her boss, Thomas Rost (who owns over 90% of the stock in Harris Funeral Homes, Inc.) and to her co-workers, telling them about her female gender identity and her determination to transition.  She wrote, “The first step I must take is to live and work full-time as a woman for one year.  At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire.”  Stephens stated in the letter that eventually she would be undergoing “sex reassignment surgery.”

The Funeral Home has a dress code specifying dark suits for men and “a suit or plain conservative dress” for women. In the letter, of course, Stephens indicated that she would wear “appropriate business attire” as a woman.  In response to the letter, Rost fired Stephens on August 15, telling her, according to his deposition testimony, “Anthony, this is not going to work out.  And that your services would no longer be needed here.”  Stephens testified that her understanding was that the way she proposed to dress was the immediate issue leading to her discharge.  (In his opinion, Judge Cox pointed out that there was no discussion in the depositions about other aspects of Stephens’ proposed appearance, such as grooming or hair style.)

Stephens filed a sex discrimination charge with the EEOC, alleging that she was fired due to her sex and gender identity. After investigating the charge, the EEOC concluded that there was “reasonable cause” to believe that Stephens’ “allegations are true.”  The EEOC also concluded, as a result of its investigation, that the Funeral Home was discriminating against its female employees because it provided appropriate suits and ties for male employees but required female employees to assume all expenses of complying with the dress code.

After the EEOC concludes an investigation resulting in a finding of “probable cause” without any kind of settlement being achieved, the case can go in either of two directions. The agency can decide to initiate a lawsuit against the employer, or it can notify the employee, in a “right to sue” letter, that the agency will not be bringing a lawsuit but that the employee may do so directly.  In 2014 the EEOC had begun an effort to establish that gender identity claims can be litigated under Title VII, and chose this as one of its first cases for direct litigation, so the EEOC filed suit in the U.S. District Court for the Eastern District of Michigan on September 25, 2014.

As expected, the Funeral Home filed a motion to dismiss the case, claiming that gender identity discrimination claims are not covered under Title VII. Responding to the motion, Judge Cox agreed with the Funeral Home that gender identity discrimination claims are not covered, as such, but refused to dismiss the Title VII claim, finding that it was covered by 6th Circuit precedents involving transgender public employees who sued on a theory of “sex stereotyping,” derived from a Supreme Court decision called Price Waterhouse v. Hopkins.

The EEOC’s complaint had presented the court with alternative theories in this case, including sex-stereotyping. If an employer discharges an employee for failing to conform to the employer’s stereotyped views as to how employees of a particular sex should dress, that may violate the ban on sex discrimination unless the employer can prove that dressing in a particular way is a bona fide occupational qualification necessary to perform the essential functions of the job.  Such potential employer defenses are generally irrelevant in deciding a motion to dismiss a claim, which is based entirely on whether the allegations in the plaintiff’s complaint are sufficient to “state a claim” under the statute, so Cox’s decision denying the motion to dismiss did not address this potential defense.  The Funeral Home did not mention any religious freedom claim under RFRA in its motion to dismiss, either, and it would have been irrelevant at that point.

After the motion to dismiss was denied, the case proceeded to discovery, during which the attorneys conducted depositions of the parties.  After discovery, the EEOC and the Funeral Home filed motions for summary judgment, contending that there were no contested facts requiring trial and the court could rule as a matter of law.   After the Funeral Home had lost its motion to dismiss, the Funeral Home got new legal representation from the Alliance Defending Freedom (ADF), a so-called Christian public interest law firm, which raised for the first time the claim that the Funeral Home was privileged to discharge Stephens regardless of Title VII because Mr. Rost’s objection to her proposed mode of dress was based on his religious views against transgender status.

Rost asserted his belief that gender and biological sex are created by God and immutable. During discovery ADF presented evidence, not questioned by the EEOC, that this was Rost’s sincere religious belief and, furthermore, that he had consistently expressed that he sought to operate this family-owned corporate business in line with his religious beliefs.  There is relevant language about this on the Funeral Home’s website and in its literature.

Judge Cox’s August 18 ruling was presented in three parts. In the first, he found that the Funeral Home had violated Title VII by discharging Stephens over the anticipated dress code violation.  In the view of Rost, Stephens was immutably a man, regardless of what Stephens asserted about her gender identity, and thus was required to dress as a man consistent with the business’s dress code.  There are many precedents under Title VII upholding the right of employers to adopt reasonable dress codes that do not impose greater burdens on employees of one or the other sex.  The Funeral Home relied on these precedents, especially one from the 9th Circuit upholding the right of an employer to require women to wear makeup.  Judge Cox noted, however, that a 6th Circuit case had specifically differed with that 9th Circuit case, and had rejected the idea that a dress code would necessarily insulate an employer from a charge of sex stereotyping.  Referring to the 6th Circuit’s ruling in an early gender identity sex stereotyping case, Judge Cox wrote, “It appears unlikely that the Smith court would allow an employer like the employer in Jesperson [the 9th Circuit make-up case] to avoid liability for a Title VII sex-stereotyping claim simply by virtue of having put its gender-based stereotypes into a formal policy.  Accordingly. . . the Court rejects the Funeral Home’s sex-specific dress code defense to the Title VII sex-stereotyping claim asserted on behalf of Stephens [by the EEOC] in this case.”

However, in the second part of his opinion, Judge Cox found that the employer should prevail based on a RFRA defense. The Funeral Home argued that requiring it to allow a funeral director identified as male in its employment records to wear clothing specified for a woman presented an unacceptable burden on Rost’s right to operate his business consistent with his religious views.  Assuming the sincerity of Rost’s religious belief, which EEOC did not challenge, Cox found that the EEOC had failed to show that requiring the Funeral Home to let Stephens dress as a woman was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping in the workplace.

Indeed, Cox pointed out, the EEOC’s own theory of the Title VII case was that requiring a particular mode of dress based on gender was a form of sex stereotyping, so its argument that the Funeral Home had to let Stephens dress as a woman under the employer’s dress code in order to achieve the EEOC’s compelling interest in opposing sex-stereotyping was contradictory. Cox noted that the EEOC had not presented any evidence of an attempt to negotiate with the Funeral Home about some sort of gender-neutral dress code that might be acceptable to both Stephens and Rost, and there was deposition testimony by Rost suggesting that a pants suit might be an acceptable compromise. The real problem, from this point of view, was Rost’s insistence that Stephens could not wear a skirt or dress.

Thus, the court concluded that the Funeral Home had a valid defense to the Title VII claim under RFRA, and granted summary judgment to the Funeral Home on that claim.

However, at the end of this part of the decision, responding to an argument by the EEOC that this ruling would severely undermine enforcement of Title VII, Cox pointed out that under 6th Circuit precedent the Funeral Home would not have been able to raise the RFRA defense if Stephens had filed suit against it directly.  “In the vast majority of Title VII employment discrimination cases,” he wrote, “the case is brought by the employee, not the EEOC.  Accordingly, at least in the Sixth and Seventh Circuits, it appears that there cannot be a RFRA defense in a Title VII case brought by an employee against a private employer because that would be a case between private parties.”

The 6th Circuit’s opinion is based on a close reading of RFRA, which can be construed to extend only to cases in which the government is either the plaintiff or the defendant.  That reading is controversial, but so far it seems to have been accepted in several of the circuits.  Thus, although in this case the Funeral Home was able to raise a RFRA defense because the lawsuit was brought by the EEOC, in the vast majority of cases, such a defense would be unavailable to it.

Since Judge Cox had rejected all of the other defenses offered by the Funeral Home under Title VII, consequently, it seems that Stephens would have won on the motion for summary judgment had she sued directly, leaving RFRA out of the picture.

In the last part of the opinion, Judge Cox granted summary judgment to the Funeral Home on the EEOC’s claim that the dress code violated Title VII because the employer provided suits for men but required women to purchase their own work clothes without subsidy. He found that this claim did not relate to the issues in Stephens’ complaint, so it should have been dealt with in a separate lawsuit.  In any event, it seems that the Funeral Home had reacted to the EEOC’s investigation by changing its dress policy to provide financial assistance to female employees, so this issue might be moot.

Judge Cox was appointed to the court by President George W. Bush. He was previously a Michigan state court judge and before that had been a partner in a Michigan law firm.  He is the older brother of former Michigan Attorney General Mike Cox.

Early press coverage of the ruling failed to note Judge Cox’s explanation that the RFRA defense could be raised by the employer only in a case brought by the government, thus making it sound, incorrectly, as if Cox had ruled that employers with religious objections to transgender employees are exempt from any non-discrimination obligation under Title VII. Cox made clear that, at least in the 6th Circuit, the RFRA exemption is only available in an employment discrimination case as a defense to a lawsuit by the government.