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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.

Federal Discrimination Agency Says Gays Are Protected Against Employment Discrimination

Posted on: July 19th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act of 1964, issued a decision on July 15 holding for the first time that Title VII’s ban on employment discrimination because of sex includes discrimination against somebody because they are gay, lesbian or bisexual.  This marks a complete turnaround by the EEOC from the position taken by the agency throughout all of its 50 year history.  The Commission, acting in its appellate capacity, overruled a 2013 agency decision that had rejected a discrimination claim by a man who had been denied a permanent Front Line Manager position by the Federal Aviation Administration.  As is customary with such administrative rulings by the EEOC, the decision does not give the name of the man, referring throughout to the “Complainant.”   Baldwin v. Foxx (Anthony Foxx, Secretary, Department of Transportation), 2015 WL 4397641 (EEOC, July 15, 2015).

 

The EEOC went into business in July 1965 when Title VII took effect.  That statute was the result of prolonged struggle in Congress, including a lengthy filibuster in the Senate led by southern conservative Democrats opposed to racial integration of the workplace.  Almost all of the attention around Title VII focused on the proposal for a federal ban on race discrimination in employment.  The bill originally introduced in the House of Representatives was limited to race or color, religion and national origin as prohibited grounds of discrimination.  The relevant House committees did study sex discrimination issues, but decided that the Equal Pay Act passed in 1963, which prohibited compensating men and women at different rates for the same work, was sufficient, and proponents of the bill feared that adding a general prohibition on sex discrimination would endanger the bill’s passage.  Nonetheless, on the floor of the House, Rep. Howard Smith of Virginia, a long-time proponent of equal legal rights for women, introduced an amendment to add sex, which was passed by an unlikely alliance of pro-feminist liberals and southern conservatives.  Some of the southerners probably supported the amendment hoping that this would make the final bill more difficult to pass.  Because “sex” was added as a floor amendment, the committee reports on the bill do not discuss it, and Smith’s amendment did not add any definition of sex to the definitional section of the bill, merely adding the word “sex” to the list of prohibited grounds of discrimination wherever that list appeared in the bill.

After the bill passed the House, it went to the Senate under a deal worked out by the leadership to by-pass the committee process, in order to prevent it from being bottled up in committee by the conservative southern Democratic chair of the Judiciary Committee, Senator Eastland, who was a sworn opponent of the bill.  Instead the measure went directly to the Senate floor under a procedure that allowed little opportunity for amendments.  There was some brief discussion about the inclusion of sex but nothing really illuminating, apart from a floor amendment attempting to reconcile the bill with the Equal Pay Act, the meaning of which wasn’t settled until a Supreme Court ruling several years later.

Consequently, the “legislative history” provides no help in figuring out what kind of discrimination Congress intended to ban when it voted to add “sex” to the list of prohibited grounds of employment discrimination.  Without such guidance, the EEOC and the courts were left to their own devices in trying to figure out what this meant, and the conclusion they reached early in the history of Title VII was that it was intended to prohibit discrimination against women because they were women or against men because they were men.  As such, both the EEOC and many courts ruled beginning shortly after the Act went into effect that it did not apply to discrimination because of a person’s sexual orientation or gender identity, both concepts that were largely missing from American jurisprudence during the 1960s.  One commonsense reason usually raised by courts in rejecting such discrimination claims was that if Congress had intended to ban these forms of discrimination, there surely would have been some mention during the debates over the bill. They have also pointed to the fact that bills to add sexual orientation and gender identity to Title VII or to enact a free-standing law addressing such discrimination have been frequently introduced in Congress since the early 1970s, but no such measure has ever been enacted.  Some courts have construed this history to reflect Congress’s view that Title VII does not already ban such discrimination.

A Supreme Court decision from 1989, Price Waterhouse v. Hopkins, initiated a changing landscape for sexuality issues under Title VII.  Ann Hopkins, rejected for a partnership at Price Waterhouse, won a ruling from the Supreme Court that sex stereotypes held by some of the partners who voted against her application violated her rights under Title VII.  Writing for a plurality of the Court, Justice William J. Brennan said that Title VII applied to discrimination because of gender, not just biological sex.  Later courts seized upon this to justify taking a broader view of sex discrimination under Title VII.  By early in this century, there was a growing body of federal court rulings suggesting that LGBT people might be protected to some extent under Title VII, depending on the nature of their case.  If the discrimination they suffered could be described in terms of sex stereotypes, or if they could show that they had been the victim of sexual harassment that turned in some way on their gender, they might be able to maintain a legal claim of discrimination.

Within the past few years, the EEOC has taken a leading role in making these developments more concrete, first by its treatment of discrimination claims within the internal investigative process, and then through its decision-making on discrimination claims brought against federal agencies, where the Commission plays an important appellate role reviewing rulings by federal agencies on internal employment grievances.  In 2012, the EEOC ruled in a case against the Justice Department that a transgender woman who was denied a position because of her gender identity had a valid claim under Title VII.  Macy v. Dep’t of Justice, 2012 Westlaw 1435995 (April 20, 2012).  This ruling echoed many then-recent federal court decisions, including some by courts of appeals, finding that discrimination because of gender identity almost always involves sex stereotyping by the discriminating employer.   Late last year, the agency and then the Justice Department concluded that all gender identity discrimination claims could be investigated and prosecuted under Title VII.  Pushing that position forward, the Justice Department has filed suit on behalf of the EEOC or joined ongoing private cases in federal court seeking to move the courts beyond the stereotyping theory to a straightforward acceptance that gender identity discrimination is sex discrimination.

The new July 15 ruling by the EEOC seeks to achieve the same thing for lesbians, gay men and bisexuals confronting employment discrimination.  While acknowledging the significance of the Supreme Court’s Price Waterhouse decision and sex stereotyping theory in widening the agency’s appreciation of the scope of sex discrimination, this ruling takes things a step further.  “In the case before us,” wrote the Commission, “we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position.  The Complainant, therefore, has stated a claim of sex discrimination.  Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

The Commission amplified this conclusion with an extended discussion, grounding its conclusion in rulings by several federal courts and pointing especially to the well-established principle that discriminating against somebody because of the race of their sexual partner has long been deemed by the Commission and the courts to be race discrimination.  Logically, then, discriminating against somebody because of the sex of their sexual partners would be sex discrimination.  The Commission also referenced the recent marriage equality litigation, noting the Supreme Court’s statement in Obergefell v. Hodges that laws prohibiting same-sex marriage “abridge central precepts of equality.”  Of course, the Commission also explained that recent court rulings have made clear that stereotyped thinking about proper gender roles, as well as behavior, underlies much sexual orientation discrimination, thus providing a firm theoretical justification in the Supreme Court’s Price Waterhouse case.

What is the significance of this EEOC ruling?  It is likely to result in the agency initiating federal court litigation, enlisting the Justice Department, to push this interpretation of Title VII into the courts.  Although federal courts are not bound by an administrative agency’s interpretations of their governing statutes, the Supreme Court has frequently deferred to agency interpretations when they are seen as consistent with the statutory language and overall congressional purpose, and constitute a reasonable interpretation of the statute.  Here is where the EEOC’s past rulings may result in less deference than courts otherwise might give.  When an agency “changes its mind” about an issue, courts may be skeptical about whether the new ruling is more political than legalistic.  So it may be premature to assume that this ruling by the EEOC means that we have no need to enact explicit federal protection through a vehicle such as the Employment Non-Discrimination Act (ENDA), which has been pending in one form or another in Congress since 1993.

Ironically, this EEOC action comes at a time when LGBT political leaders have largely abandoned ENDA, finding it too narrowly focused on employment.  Objections have also been raised to the extremely broad religious exemption contained in ENDA.  One of the major lobbying victories last summer was persuading the Obama Administration not to include the broad ENDA-style religious exemption in President Obama’s executive order banning sexual orientation and gender identity discrimination by federal contractors.  Lobbyists are now working with legislators on a broader, comprehensive LGBT civil rights bill, expected to be introduced this summer, that would go beyond employment to cover other areas traditionally covered by federal law, including housing, public services and public accommodations.  In the meantime, however, it will certainly be useful for the federal government’s primary civil rights enforcement agency, the EEOC, to be on record that sexual orientation discrimination is sex discrimination.  EEOC’s view may be influential with the agencies that enforce the Fair Housing Act and the other titles of the Civil Rights Act, and its analysis may prove persuasive to the courts, regardless of the level of deference it receives.

The vote on this decision is not indicated in the opinion (which was drafted by the Commission’s staff), but was reported in the press as a party-line vote of 3-2.  Under the statute, the five-member Commission may not have more than three commissioners who are members of the same political party.  The two Republicans on the Commission voted against this decision, but did not issue a written dissent.  A prime mover behind the EEOC’s expanded view of sex discrimination to encompass gender identity and sexual orientation claims has been Commissioner Chai Feldblum, the first openly gay member of the Commission, who was appointed by President Obama and confirmed by the Senate for a second term last year.