Roundtable #3 | Harris Funeral Homes: Employment Discrimination and Gender Identity
Foreword
On October 8th, 2019, the Supreme Court heard oral arguments for three cases dealing with LGBTQ+ employees and Title VII: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Bostock v. Clayton County, and Altitude Express Inc. v. Zarda.
In deciding what constitutes “sex discrimination,” specifically as it relates to gender identity and sexual orientation, the Supreme Court will provide instruction for assessing the scope of other federal anti-discrimination laws (e.g. Fair Housing Act, The Equal Credit Opportunity Act, section 1557of the Affordable Care Act, Title IX of the Education Amendments of 1972, etc.). Thus, in many ways, Harris Funeral Homes is more than just a case of equal employment opportunity. It is about affording all individuals the equal protection of the law. Whatever the Court decides, one thing is manifestly clear from the rise in discrimination disputes over terminological ambiguity: the need for explicit codification of legal protections for all individuals, irrespective of their membership in any particular class or group.
This Roundtable focuses on Harris Funeral Homes. We first provide a history of Title VII and the Equal Employment Opportunity Commission, then proceed to contexualize Harris Funeral Homes by drawing upon related LGBTQ+ discrimination cases, and finally conclude with analysis and its implications.
Jake Gray
Roundtable Editor, Fall 2019
Section I: History of Title VII, EEOC, and Employment Discrimination
Complaints of workplace discrimination often fall under the jurisdiction of the federal agency called the Equal Employment Opportunity Commission (EEOC). Much of the EEOC’s enforcement authority comes from Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of “race, color, religion, sex, or national origin.” [1] The terms race, color, religion, and national origin have all been clearly understood by the courts (e.g. Griggs v. Duke Power Company, Espinoza v. Farah Manufacturing Co., Hazelwood School District v. U.S.), but the addition of sex to Title VII has proven a more difficult term for the courts to interpret. To understand why, it helps to consider the historical context in which the Civil Rights Act was passed.
When President John F. Kennedy first proposed his initial version of the Civil Rights Act to Congress in 1963, he did so as a response to the growing civil rights movement to end racial discrimination in America. Indeed, President Kennedy never even mentioned the words ‘sex’ or ‘gender’ in his proposal, and his televised announcement makes it clear what he hoped to achieve with the bill:
One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free. They are not yet freed from the bonds of injustice. They are not yet freed from social and economic oppression. And this Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free. [2]
The bill that would become the Civil Rights Act sailed through its committee, only addressing race discrimination. Then, two days before the bill went to the House floor, Representative Howard Smith, an anti-civil rights Democratic representative from Virginia, submitted an amendment to Title VII hoping that it would kill the bill. Smith’s plan was simple: by adding “on the basis of… sex” to the bill, centrist supports would need to reevaluate their positions on the bill. [3] In the end, however, the amendment stood, and the bill passed with 290 votes in the House. [4]
Without any legislative history to contextualize the seemingly-straightforward text of the bill, the courts struggled to determine what discrimination “on the basis of… sex” actually entails. Transgender women, in particular, have argued that firing an employee who transitioned from male to female constitutes sex-based discrimination— if the employee had chosen to continue expressing themselves as a man, then there would be no grounds for dismissal. [5] The Seventh Circuit disagreed, ruling in the 1984 case Ulane v. Eastern Airlines that “Congress never considered nor intended that this 1964 legislation [Title VII] apply to anything other than the traditional concept of sex.” [6] Other cases involving discrimination through sexual orientation or sex stereotypes, such as in the cases of Price Waterhouse v. Hopkins, presented a different question: if an employer fires an employee because the employee’s gender expression does not match one’s expectations, does that constitute discrimination “on the basis of… sex,” or is it something else— something deplorable, no doubt, but legal— entirely? [7] In recent years, it has been the Equal Employment Opportunity Commission that worked to define the meaning of sex-based discrimination as it applies to Title VII. In 2012, the EEOC issued a memorandum indicating its intention to interpret sex-based discrimination to include people of non-binary sexual and gender identities, and the courts have deferred to executive judgement on the matter. [8] To that end, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission presents an opportunity to cement the trend towards the inclusive interpretation the EEOC has championed recently—or discard it altogether.
Ohad Klopman
Roundtable Contributor
Section II: Case Context
While twenty-one states have laws banning sex and gender discrimination in the workplace, the scope of federal protections against such bias is nebulous at best. [9] This is the challenge that the Supreme Court must confront, as it prepares to issue decisions with respect to sexual orientation in Bostock and Zarda, and with regard to gender identity in Harris Funeral Homes. All of these employment discimination cases hinge on one word in the text of Title VII: sex.
In decisions before 2007, at least nine federal circuit courts ruled that Title VII does not prohibit discrimination on the basis of sexual orientation. [10] The tide began to shift in 2015, when the Court recognized same-sex marriage in Obergefell v. Hodges and the U.S. Equal Employment Opportunity Commission (EEOC) concluded that Title VII applies to sexual orientation. [11] Clashing with the EEOC’s view of the law, however, the U.S. Department of Justice argued in a brief that the ordinary definition of “sex” does not include sexual orientation and gender identity. [12] This division in the federal government is now mirrored in the recent federal circuit court split.
In its groundbreaking decision in Hively v. Ivy Tech Community College (2017), the Seventh Circuit became the first federal appeals court to rule that sexual orientation falls within the definition of "sex” as set out in Title VII. [13] While the Eleventh Circuit decided earlier that year in Evans v. Georgia Regional Hospital that sexual-orientation-based claims are not actionable under Title VII, the Second Circuit reached the opposite conclusion the following year in Zarda v. Altitude Express, Inc., deepening the circuit split on sexual orientation. [14] In the general context of employment discrimination litigation, the Second and Seventh Circuits stand alone in holding that sexual orientation falls within Title VII protection. Every other circuit (except the Federal Circuit, which has not considered the issue), has reached the same decision as Bostock.
On April 22, 2019, the Supreme Court granted review of the Second Circuit’s Zarda decision and the Eleventh Circuit’s decision in Bostock v. Clayton County, which relied on the anti-LGBTQ+ ruling in Evans as precedent. Both Bostock and Zarda were brought by employees who alleged that they were fired because they are gay. They argued that had a woman occupied the same position, her expression of sexual interest in men would not lead to her termination as it did for Bostock and Zarda -- both men. [15] [16]
On the same day the Supreme Court granted certiorari to hear Zarda and Bostock, it also agreed to consider the issue of gender identity in Harris Funeral Homes. There, the Sixth Circuit had held that it was “analytically impossible” not to consider an employee’s sex when deciding whether to terminate him or her for being transgender. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court reasoned. [17] Three other circuit courts have ruled that Title VII does not apply to gender identity, but those decisions came before the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins (1989), which held that discrimination based on an employee's failure to conform to a gender stereotype is sex-based discrimination. [18] In Smith v. City of Salem (2004), the Sixth Circuit held that discrimination based on transsexuality is a Title VII sex-stereotyping claim under Price Waterhouse, and that Title VII prohibits discrimination based on transsexuality. [19] In Etsitty v. Utah Transit Authority (2007), however, the Tenth Circuit reached the opposite conclusion. [20] Amid this hazy legal landscape, the Court’s ruling on sexual orientation in Bostock and Zarda, along with its ruling on gender identity in Harris Funeral Homes, is expected to clarify Title VII’s sex provision and the overall scope of the labor law.
Jessica Lin
Roundtable Contributor
Section III: Facts of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission
In 2013, Aimee Stephens was terminated from her position as the funeral director at the R.G & G.R. Harris Funeral Homes, Inc. after notifying her boss about her decision to transition from male to female and to start presenting herself as a woman at work. Aimee was fired two weeks after she told her boss, and as a result, was left without health insurance when her kidneys failed. The funeral homeowner, Thomas Rost, testified that Stephens violated the dress code designated for female employees by not meeting the workplace standard of appearing feminine. [21] The Equal Employment Opportunity Commission filed a lawsuit against the Funeral Home arguing that the corporation discriminated against Stephens by ending her employment on the basis of her non-conforming gender identity.
With the Court of Appeals for the Sixth Circuit’s reversal of the United States Court for the Eastern District of Michigan’s decision, the Sixth Circuit granted summary judgement to the EEOC on its unlawful termination claims and also held that Harris Funeral Homes discriminated against Stephens on the basis of sex. [22] However, while the case was pending before the Sixth Circuit, U.S. Attorney General Jeff Sessions forced the EEOC to oppose Stephens by issuing a memorandum with a reinterpretation of Title VII.
The Supreme Court will now consider, in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, whether Title VII protects employees from discrimination on the basis of their transgender identity and sex stereotyping under Price Waterhouse v. Hopkins. [23] The Trump administration has sided with the funeral home, arguing that sex stereotyping is not a form of sex discrimination. This case will decide whether transgender status is a protected class under the law.
Rachel Barkin
Roundtable Contributor
Section IV: Harris Funeral Homes and Equal Employment Opportunity
The doctrine of at-will employment is at the heart of Harris Funeral Homes. Under the at-will doctrine, an employee may be fired for any reason so as long as that reason is not prohibited by law. This doctrine creates a uniquely threatening situation for workers from marginalized groups, who are more vulnerable to being dismissed on grounds irrelevant to both company finances and their own job performance. Simply, workers from minority groups are more likely to be dismissed with a legal, but entirely groundless, reason. To prevent such discrimination, labor laws require that employers provide positive reasons for termination. Without labor laws that specifically enumerate acceptable, substantive reasons for termination, issues of the sort that we find in Harris Funeral Homes may never disappear. The two issues before the Court in Harris Funeral Homes are whether Title VII prohibits discrimination against (1) an employee’s status as transgender or (2) sex stereotyping under Price Waterhouse. [24]
The case of Aimee Stephens is manifestly one of LGBTQ+ discrimination. Harris Funeral Homes grapples with the question of whether Title VII extends legal protections to an employee’s transgender status (or more generally, their gender identity). Protection against sex stereotyping, established in Price Waterhouse, encompasses exactly this sort of question. This is because sex stereotyping is discrimination against the outward expression of one’s gender identity; it follows, then, that that very identity, or sex status, be protected from discrimination as well. In other words, the issue of sex stereotyping is merely an extension of discrimination based on mere gender identity. Title VII must thus apply to an employee’s gender identity or gender expression, which naturally includes an employee’s transgender status.
In its ruling in Harris Funeral Homes, the Sixth Circuit Court held that, in deciding whether to terminate an individual for their transgender status, it is “analytically impossible” not to consider the individual’s sex. [25] In strictly analytical terms, the Sixth Circuit’s statement appears correct. Neither gender identity nor sexual orientation can be taken as substantive notions without reference to an individual’s sex. An individual’s ‘transgender status’ derives from the very relation between an individual’s gender identity/expression and that individual’s sex (or assigned gender). The same can be said of one’s sexual orientation, which is defined by the relationship between one’s sex and that (or those) of one’s romantic interests.
By this same lens, the sex-stereotyping argument also guarantees protection of gender identity or expression under Title VII. The most basic sex stereotype is that one identifies with one’s sex; thus, individuals who do not conform to their sex concomitantly do not conform to its stereotypes.
Anxiety concerning the possibility of social upheaval, as a result of an expanded Title VII interpretation, is dubious at best. Even if one were to discount the fact that federal courts of appeals have ruled that Title VII protects transgender workers for twenty years without sparking serious social backlash, many of the worries reflected in typical anti-trans arguments (e.g. bathroom usage, participation in sports, etc.) are extra-legal matters beyond the purview of the Court. [26] The matter is one of equal employment opportunity and the equal protection of the law. Shall we, as a society, permit the lawful discrimination of individuals on the basis of arbitrary attributes? Whether one behaves according to a socially conditioned model of “man” or “woman” is irrelevant to their performance as a worker and, furthermore, their value as a human. No worker should face job insecurity or discrimination because of who they are.
Jake Gray
Roundtable Editor, Fall 2019
Bibliography
[1] “Title VII of the Civil Rights Act of 1964.” U.S. Equal Employment Opportunity Commission, n.d. https://www.eeoc.gov/laws/statutes/titlevii.cfm.
[2] “Pre 1965: Events Leading to the Creation of EEOC.” E U.S. Equal Employment Opportunity Commission, n.d. https://www.eeoc.gov/eeoc/history/35th/pre1965/index.html.
[3] Dreiband, Eric S., and Brett Swearingen. “The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964.” Jones Day, n.d. https://www.jonesday.com/files/Publication/07f7db13-4b8c-44c3-a89b-6dcfe4a9e2a1/Presentation/PublicationAttachment/74a116bc-2cfe-42d2-92a5-787b40ee0567/dreiband_lgbt.authcheckdam.pdf.
[4]
[5] Dreiband, Eric S., and Brett Swearingen. “The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964.” Jones Day, n.d. https://www.jonesday.com/files/Publication/07f7db13-4b8c-44c3-a89b-6dcfe4a9e2a1/Presentation/PublicationAttachment/74a116bc-2cfe-42d2-92a5-787b40ee0567/dreiband_lgbt.authcheckdam.pdf.
[6] Ibid.
[7] “Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII.” Equal Employment Opportunity Commission, n.d. https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm.
[8] “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers.” Equal Employment Opportunity Commission, n.d. https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
[9] Miller, S. (2019). LGBTQ employment discrimination: Half of states offer no protections. [online] Available at: https://www.usatoday.com/story/news/nation/2019/10/08/lgbt-employment-discrimination-half-of-states-offer-no-protections/3837244002/ [Accessed 31 Dec. 2019].
[10] Iafolla, R. (2019). Supreme Court Can Settle Split on LGBT Bias in the Workplace. [online] Available at: https://news.bloomberglaw.com/daily-labor-report/supreme-court-can-settle-split-on-lgbt-bias-in-the-workplace [Accessed 31 Dec. 2019].
[11] Barnes, R. (2019). Supreme Court to decide whether gay, transgender workers are protected by anti-discrimination laws. [online] Available at: https://www.washingtonpost.com/politics/courts_law/supreme-court-to-decide-if-anti-discrimination-employment-laws-protect-on-basis-of-sexual-orientation-and-gender-identity/2019/04/22/175fca02-6503-11e9-a1b6-b29b90efa879_story.html [Accessed 31 Dec. 2019].
[12] Sopelsa, B. (2019). Gay workers not covered by civil rights law, Trump admin tells Supreme Court. [online] Available at: https://www.nbcnews.com/feature/nbc-out/gay-workers-not-covered-civil-rights-law-trump-admin-tells-n1045971 [Accessed 31 Dec. 2019].
[12] Ivy Tech Community College, 853 F. 3d 339 (7th Cir. 2017)
[13] Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2017)
[14] Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018)
[15] Ibid.
[16] Gerald Lynn Bostock v. Clayton County, No. 17-13801 (11th Cir. 2018)
[17] Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 at 15 (6th Cir. 2018)
[18] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
[19] Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)
[20] Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007)
[21] Liptak, Adam. “Can a Fired Transgender Worker Sue for Job Discrimination?” The New York Times, November 12, 2018. https://www.nytimes.com/2018/11/12/us/politics/transgender-job-discrimination.html.
[22] Canzoneri, Julia, and Robert Reese Oñate. “R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.” Legal Information Institute. Legal Information Institute, n.d. https://www.law.cornell.edu/supct/cert/18-107.
[23] “R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.” Oyez, n.d. https://www.oyez.org/cases/2019/18-107.
[24] “R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.” Oyez, n.d. https://www.oyez.org/cases/2019/18-107.
[25] Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 at 15 (6th Cir. 2018)
[26] Ibid.