The distinction drawn by the parties and the panel members rests on two lines of precedent: one upholding sex-specific dress codes and grooming policies and a second prohibiting sex-based stereotyping. In Price Waterhouse v. Hopkins, the Supreme Court explained:
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"By the time Price Waterhouse was issued in 1989, courts had widely concluded that sex-specific dress codes do not violate Title VII unless they impose unequal burdens. For instance, requiring men and women to wear sex-specific business attire would probably not violate Title VII because it would not impose a greater burden on one sex than another. By contrast a policy that allows men to dress casually but requires women to wear business attire would likely violate Title VII because it imposes a greater burden on women. Despite this longstanding and widespread precedent, the Supreme Court did not address the potential impact of the Price Waterhouse decision.
Because of these competing lines of precedent, the EEOC and Harris Funeral Homes dispute how the facts in this case should be characterized. In my view, however, these two lines of precedent cannot be reconciled, and this can be readily seen in Smith v. City of Salem, in which the Sixth Circuit allowed a transgender individual to proceed with a claim of sex discrimination. In Smith, the court stated:
After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.
Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite). Discrimination against the transsexual is then found not to be discrimination "because of . . . sex," but rather, discrimination against the plaintiff's unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as "transsexual" on a plaintiff, and then legitimize discrimination based on the plaintiff's gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification.
Such was the case here: despite the fact that Smith alleges that Defendants' discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for his perceived sex, the district court expressly declined to discuss the applicability of Price Waterhouse.As reflected in the above discussion, the premise that discrimination based on transgender status constitutes sex discrimination rests on the underlying assumption that treating a man who "wear[s] dresses and makeup, or otherwise act[s] femininely" is sex discrimination. Under the sex-specific dress code cases, however, it's perfectly ok to treat men who wear dresses differently from women who wear dresses. So something has to give.
The answer, I suggest, is either to interpret Price Waterhouse more narrowly so as to reconcile it with the dress code cases or to reject the sex-specific dress code cases as having been wrongly decided. As Harris Funeral Homes has contended, Price Waterhouse can be read as only prohibiting sex stereotyping that results in unequal burdens on a particular sex. In particular, the Supreme Court observed in Price Waterhouse: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind." If Price Waterhouse is interpreted as only applying to sex stereotyping that places women or men in a catch 22, then there is no conflict with the dress code cases. Under this interpretation, it would not be unlawful to discriminate against transgender men and women (or gay men and lesbians) so long as one sex is not treated worse than the other sex.
The alternative, of course, is to reject the sex-specific dress code cases. If, pursuant to Price Waterhouse, sex discrimination includes treating an aggressive woman worse than an aggressive man, then it would seem to follow that sex discrimination also includes treating a man who wears traditionally female attire worse than a woman who wears traditionally female attire. Even more fundamentally, a strong case can be made that the dress code cases are inherently flawed. They carve out sex-specific dress codes and grooming policies on the grounds that hair length, for instance, is not an immutable characteristic or a fundamental right. This reasoning, however, is utter nonsense as Title VII is not limited to differential treatment between protected classes with respect to fundamental rights and immutable characteristics. For example, it is unlawful to fire a woman who engaged misconduct but not a man who engaged in similar misconduct, even though misconduct is not related to fundamental rights or immutable characteristics.
Based on the oral argument, I suspect that the court will rule for the EEOC. Although numerous courts have concluded, based on Price Waterhouse, that discrimination based on transgender status effectively constitutes sex discrimination, they have largely overlooked the tension between Price Waterhouse and the dress code cases. Here, at last, a court has a chance to reconcile these competing lines of precedent. If the Sixth Circuit sweeps that issue under the rug, then even if the EEOC scores a victory, it will largely be a hollow one. After all, if an employer may not fire a transgender woman for being transgender but may fire her for not wearing a dress and make-up, that won't make the workplace very welcoming for most transgender workers.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.