Sunday, September 6, 2020

Bostock and Transgender Bathroom Access: A Simple Explanation Why Courts Are Wrong

Recently, two U.S. courts of appeals mistakenly relied on
Bostock v. Clayton County to conclude that denying bathroom access to transgender individuals consistent with their gender identity is unlawful sex discrimination -- Grimm v. Gloucester County School Board (4th Cir. Aug. 26, 2020) and Adams v. School Board (11th Cir. Aug. 7, 2020). 

A simple example illustrates why these courts have erred: If employers are required to allow transgender bathroom access, then what happens when an employer has a valid reason for assigning workers based on sex to perform job duties, such as with locker room attendants?

Although the Supreme Court concluded that it is unlawful for an employer to fire someone simply for being gay or transgender, it reached that conclusion based on the assumption that "sex" under Title VII of the Civil Rights Act of 1964 refers only to biological sex. As explained by the Court, firing a gay man for being gay is sex-based discrimination because the employer has treated a man who is sexually attracted to men worse than a woman who is sexually attracted to men. Similarly, firing a transgender man for being transgender is sex-based discrimination because the employer has treated someone who was identified as female at birth (i.e., someone who is biologically female) and now identifies as male worse than an individual who was identified as male at birth (i.e., someone who is biologically male) and now identifies as male.

How does this reasoning affect the case of single-sex locker rooms and bathrooms? The answer is that it does not.

Suppose a gym is deciding whether it can refuse to assign a male employee to clean and monitor the women's locker room. Under Title VII, it is lawful for an employer to make sex-based decisions in the rare cases where sex is a "bona fide occupational qualification." Courts and the EEOC have recognized bodily privacy as a legitimate reason for making sex-based decisions. If "sex" means biological sex, as the Court assumed in Bostock, then a transgender woman is considered male for purposes of Title VII. As a result, if it is lawful to refuse to assign a cisgender man to monitor the women's locker room, it is also lawful to refuse to assign a transgender woman to do so, since both are male insofar as Title VII is concerned. 

As the Fourth and Eleventh Circuits would have it, though, a gym would violate Title VII by requiring a transgender female employee to use the men's locker room to address bodily functions. That makes no sense whatsoever. If an employer can assign someone to work in a particular location based on biological sex because of concerns about bodily privacy, then surely it also can assign the same individual to bathroom facilities based on biological sex. Otherwise, the individual would perform work duties in one locker room and then visit the other locker room to answer the call of nature.

Justice Sotomayor clearly recognized this issue in the oral argument in R.G. & G.R. Harris Funeral Homes v. EEOC.  As she explained to Aimee Stephens's counsel: The "hard question" is how to deal with "women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That's why we have different bathrooms." But she explicitly rejected the employer's contention that ruling for Stephens would mean that a transgender woman is male for purposes of Title VII's BFOQ exception: 

No. What they're doing is saying if there is an independent reason why a man who's transgendered can't have a job that a woman has, then that reason is good enough, you don't have to hire them.

But if there is no reason why your gender should marry in the work you are doing, why should you not be hired?

Note that Sotomayor refers to a transgender woman as a "man who's transgendered." In other words, a transgender woman is still male and would not be entitled to a job that is not available to other men.

The Bostock decision has been hailed as a huge victory for LGBT rights, but its limitations cannot be ignored. It can hardly be seen as a tremendous shift in judicial thinking when the most liberal Justice -- Sotomayor -- had misgivings about allowing individuals with "male characteristics" access to the women's bathroom. Rather, it was only possible because of close adherence to legalistic principles of statutory interpretation and because it avoided the "hard question" of bathroom access.  

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.

Wednesday, August 5, 2020

Gogel v. Kia: When are HR employees protected against retaliation?

On July 29, 2020, in Gogel v. Kia Motors Manufacturing of Georgia, Inc., the full Eleventh Circuit ruled that Andrea Gogel did not engage in protected activity under Title VII of the Civil Rights Act of 1964 when she purportedly encouraged or "recruited" another employee to file an employment discrimination suit against the company. As a result, firing her for this conduct did not violate Title VII. The court reasoned that because Gogel was the Team Relations manager, her conduct so interfered with her job performance that it rendered her ineffective in her position. Ultimately, even if the majority should not have rejected Gogel's claim, it was not for the reasons advanced by the dissenters.

Judge Beverly Martin erroneously argued in dissent that Gogel established a prima facie case of retaliation merely by assisting another employee in filing an EEOC charge. In Martin's view, the reasonableness of this conduct, in light of Gogel's job duties, is irrelevant to whether the conduct was protected and is instead relevant to whether the company's reason for firing her was a pretext for retaliation. 

Martin is plainly wrong. As explained in the EEOC's retaliation guidance, when an employee opposes an employer's action, the conduct is only protected if the manner of opposition is reasonable. As Martin would have it, though, the reasonableness of the opposition is relevant to whether the employer was motivated by discrimination. In other words, even when an employee was fired in retaliation for protected activity, it is nonetheless lawful if the protected conduct was unreasonable because it made the employee ineffective in her position. Title VII, however, does not include a reasonableness defense to otherwise unlawful retaliation, so Martin's critique of the majority comes up short.

The other major dissent, by Judge Robin Rosenbaum, is equally flawed. Rosenbaum challenged the foundation of the majority's analysis. She contended that the majority was required to balance "the purpose of [Title VII] and the need to protect individuals asserting their rights thereunder against an employer's legitimate demands for loyalty, cooperation and a generally productive work environment." Rosenbaum failed to recognize, however, that the majority had done the required balancing.  The majority explained that an employee's conduct is not protected opposition if it "so interferes with the employee's performance of her job that it renders her ineffective in the position for which she was employed." Clearly, this rule is intended to balance the employer's and employee's interests in situations like the one at hand. It would be perverse if an employer were prohibited from taking an action based on conduct that made an employee unable to do her job. Short of this threshold, the balance weighs in the employee's favor, but once it is reached, the balance weighs in favor of the employer. 

If the majority did in fact err, it was in concluding that Gogel's conduct interfered with effective job performance. At bottom, the company's decision to terminate Gogel rested on little more than the belief that Gogel had met with Ledbetter and provided the name of the attorney Gogel was planning to meet. Even if the company believed this, there were factual disputes that might have permitted a jury to conclude that Gogel's conduct did not rise to the level of making her an ineffective Team Relations manager.  The majority cautioned that a court should not "sit as a super-personnel department" by second-guessing an employer's decision not to "extend amnesty to an employee who has decided that she no longer needs to perform her job duties." But in making this contention, the majority assumes that Gogel was no longer performing her job duties, and given factual disputes about those duties, such as the extent to which Gogel was responsible for handling EEO investigations, that determination was better left for a jury.

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.

Wednesday, April 8, 2020

Babb v. Wilkie: A Hollow Victory for Federal Employees

In Babb v. Wilkie, No. 18-882 (U.S. Apr. 6, 2020), the Supreme Court held that a federal employee alleging age discrimination can prevail even if age was not a but-for cause of the final personnel action being challenged. 

Although nominally ruling for the petitioner, a longtime employee of the Department of Veterans Affairs, the Court has in reality handed a significant win to federal agencies. The Court's ruling is akin to a loss for employees because the Court rejected the less stringent motivating-factor standard applicable to most private-sector claims under Title VII of the Civil Rights Act of 1964 and instead doubled down on the principle that but-for causation is the default standard.

Pursuant to § 633a(a) of the Age Discrimination in Employment Act, "[a]ll personnel actions affecting [federal] employees or applicants . . . shall be made free from any discrimination based on age." The Court agreed with the petitioner that, because this provision does not merely require that personnel actions be free from age discrimination but also that the making of those actions be free from age discrimination, the statute "demands that personnel actions be untainted by any consideration of age." Thus, the Court concluded that a federal agency violates the ADEA if it engages in age discrimination in the process of making a personnel decision even if it would have made the same ultimate personnel decision in the absence of discrimination.

To illustrate this principle, Justice Alito explained that it would violate § 633a(a) if a federal agency gave numerical scores based on non-discriminatory factors to candidates for promotion and then docked candidates who are forty or older five points. Under such circumstances, an applicant forty or older could establish a violation if his or her score was docked five points because of age even if the person selected for promotion received a score more than five points higher and thus the age-based scoring system did not affect the outcome for the applicant.

If the Court had stopped there, then the decision would be a significant victory for federal employees and applicants. However, the Court went on to explain that, under § 633a(a), "age must be the but-for cause of differential treatment" even if age was not the "but-for cause of the ultimate decision." In adopting this framework, the Court rejected the alternative advanced by the petitioner. In her brief, the petitioner contended that the phrase "based on age" in § 633a(a) does not constitute a standard of causation and "simply identifies the type of discrimination—'age' as opposed to some other characteristic—that is prohibited by the statute." Citing recent federal-sector decisions by the Equal Employment Opportunity Commission, the petitioner contended that if a federal-sector plaintiff establishes that age was a motivating factor for a personnel action, then the burden of proof shifts to the agency to show that it would have made the same decision in the absence of age discrimination.

The Court unquestionably rejected this interpretation, instead applying the default rule of but-for causation:

Under § 633a(a), the type of discrimination forbidden is "discrimination based on age," and "[i]n common talk, the phrase 'based on' indicates a but-for causal relationship." Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); cf. Comcast Corp. v. National Assn. of African American-Owned Media, ante, at ––––. Therefore, § 633a(a) requires that age be a but-for cause of the discrimination alleged.
The upshot of the Court's interpretation of § 633a(a) is that a plaintiff is not limited to challenging final personnel actions, yet the plaintiff still bears the burden of proving that the discrimination alleged would not have occurred but for the plaintiff's age.

To be sure, the Court ruled for the petitioner and agreed that § 633a(a) provides broad protection against age discrimination in the making of personnel actions. Still, given the rejection of the motivating-factor standard, the ruling will likely do little to help plaintiffs prevail when, as in the vast majority of cases, they challenge actual personnel actions.

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.

Sunday, April 5, 2020

Can someone be too old to be a professional driver or pilot?

A few days ago, the EEOC filed a lawsuit alleging that a job applicant was denied a position as an airport shuttle driver because of his age. As reported by media sources, the applicant was 79 years old and met the general job requirements but was denied the job because the employer's insurance policy did not cover drivers 75 and older. The EEOC's suit raises the obvious question of whether -- and if so, when -- someone can be too old to be a professional driver.

Under the federal Age Discrimination in Employment Act, it is generally unlawful to discriminate against a worker based on age. If age is a "bona fide occupational qualification" for a particular position, however, then taking a decision based on an individual's age is not unlawful. Although older age is not a perfect predictor of whether an individual can perform a particular job safely, older age correlates with various physical and neurological conditions that can affect the ability to drive and perform other tasks.

The correlation between a driver's age and risk to public safety will naturally be reflected in insurance costs. As a result, insurance companies may charge exorbitant rates or even refuse to insure drivers who exceed a certain age. In Enlow v. Salem Keiser Yellow Cab, 389 F.3d 802 (9th Cir. 2004), a 73-year-old cab driver was fired after his employer learned that its new insurance policy, which it had not reviewed before purchasing, did not cover drivers over the age of 70. As recognized by the court, given the employer's need to insure its drivers, the employer might be able to show that it was permissible to fire drivers over a certain age if insuring them was prohibitively expensive.

The public safety question also arises where an employer claims that an individual is too old to be qualified to work as a professional pilot. In 2006, the EEOC filed a suit against Exxon Mobil, challenging the company's policy of requiring corporate pilots to retire at age 60 (later revised to require retirement at age 65), which was patterned on FAA regulations.

As the court explained in the Exxon case in ruling for the defendant:

Exxon has established that it was compelled to adopt the rule because there are no adequate means of individually testing each pilot. Exxon presented the testimony of several medical professionals—including a cardiologist and neurologist—and the reports of multiple organizations on the issue. Each affirmed the notion that there are no adequate medical tests that would help Exxon predict whether a pilot was at risk for suffering sudden and subtle incapacitation while in flight. Further, the evidence confirmed that the risk for this incapacitation increased significantly with age and no individualized testing could account for this increased risk.
Although the EEO laws are meant to protect workers from discrimination unrelated to job performance, they should not override public safety and reasonable business practices. An EEOC representative is quoted in the EEOC's press release involving the airport shuttle driver as stating that "job seekers should be evaluated based on their qualifications, not their age." The issue in this case, however, is whether the applicant's age rendered him unqualified. 

There is, of course, no safety exception to the prohibitions against age discrimination. On the other hand, risks to safety can be weighted more heavily than many other risks. Thus, a small risk might be unacceptable if it could lead to serious injury or death, even if a similar risk might be acceptable in other contexts that do not involve comparable injuries. 

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.

Saturday, March 14, 2020

Why the Women's National Team Soccer Players Should Lose Their Equal Pay Act Suit

The U.S. Soccer Federation suffered a backlash after arguing in a legal filing that the Women's National Team should not prevail on their claim under the Equal Pay Act because female players have less "skill" and less "responsibility" than their male counterparts. Whether the skill and responsibility required for female players are equal to those required for their male counterparts is crucial because an EPA violation can only arise if an employee is paid less than someone of the opposite sex in a job that requires "equal skill, effort, and responsibility." Regardless of the merits of USSF's arguments that female and male players do not perform equal work, however, I believe there is a fundamental flaw in the WNT's case that must doom their suit.

In addition to comparing themselves to male players performing equal work, the WNT also must establish that they perform their work in the same "establishment" as the male players. If the WNT cannot show that the work is performed in the same establishment, then they must automatically lose their EPA claim. As USSF has pointed out, the term "establishment" generally refers to a particular physical place of business. Two or more physical places of business can constitute the same "establishment" under "unusual circumstances," such as where a central administrative unit hires all employees, sets wages, and assigns the locations of employment; employees frequently interchange work locations; and daily duties are virtually identical and performed under similar working conditions. 

The WNT tries to fit its case within the exception to the same-physical-place rule:
Here, USSF is a "single establishment" because it is undisputed that it has centralized control over WNT and MNT job descriptions, budgeting, planning, scheduling, event marketing, and decisions relating to licensing and broadcasting. With few exceptions (such as coaches and press officers), the majority of USSF employees perform work for both the WNT and the MNT. USSF's central administration also makes decisions about game venues, hotels, travel, meals and other terms of employment for both teams as part of the same process. And, as described in more detail below, the MNT and WNT are both promoted by Soccer United Marketing ("SUM"), the for-profit marketing arm of Major League Soccer, in a manner such that a breakdown of broadcast and sponsorship revenues between the two teams "can’t be done."
In my view, the primary flaw in the WNT's argument is that they focus on USSF generally rather than on the WNT and MNT specifically. The WNT can only prevail if female soccer players are performing their work in the same establishment as male soccer players. And it is clear that they are not. Despite USSF's centralized control over both the WNT and MNT, they are completely segregated. Male players can never switch to the WNT, and female players can never switch to the MNT. And, of course, male players only play against other male players, and female players only play against other female players. Even if most USSF employees perform work for both the WNT and MNT, that says nothing about the work performed by the members of the WNT and MNT themselves.

The WNT has largely litigated their equal pay suit in the media, and the perceived unfairness of paying female soccer players less than male soccer players has made it easy for the WNT to garner public sympathy, regardless of the strengths of their legal arguments. To be sure, sexist attitudes and misogyny may play a role in the lower wages of female athletes. But the scope of the EPA is limited, and given the complete segregation between female and male soccer players, the NWT's EPA claim must fail.

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.

Saturday, February 29, 2020

Rizo v. Yovino on Remand: Pure Nonsense

On February 27, 2020, on remand from the Supreme Court, the Ninth Circuit issued its long-awaited new en banc decision in Rizo v. Yovino, No. 16-15372, holding that an employer may not rely on salary history under the Equal Pay Act to justify a salary differential between workers of the opposite sex performing equal work.

The underlying principle makes sense in theory -- women's wages have been depressed historically, so reliance on salary history perpetuates sex-based pay discrimination. By adopting a per se rule that salary history can never be used as a defense under the EPA, however, the Ninth Circuit has clearly gone too far. A female applicant, for example, could be currently earning more than a male applicant with similar qualifications, so relying on pay history in such a case presumably would not be sex discrimination yet still would not qualify as a factor other than sex under the Ninth Circuit's reasoning.

The elephant in the room has always been salary negotiations, and this is where the Ninth Circuit has made its most egregious error. If a job applicant voluntarily reveals his or her salary history to bargain for higher starting pay, should it be legal for the employer to take that information into account? How can employers compete for the best talent if they cannot entice applicants to leave their current employers by offering to beat, or at least match, what applicants are currently earning?

In the Ninth Circuit's previous en banc decision, which was vacated by the Supreme Court, the Ninth Circuit side-stepped this issue:
We do not decide, for example, whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation. We prefer to reserve all questions relating to individualized negotiations for decision in subsequent cases. 
In the Ninth Circuit's new decision, rather than leave this issue open, it has tackled it head on:
Our holding prevents employers from relying on prior pay to defeat EPA claims, but the EPA does not prevent employers from considering prior pay for other purposes. For example, it is not unusual for employers and prospective employees to discuss prior pay in the course of negotiating job offers, and the EPA does not prohibit this practice. Certainly, our opinion does not prohibit this practice. But whatever factors an employer considers, if called upon to defend against a prima facie showing of sex-based wage discrimination, the employer must demonstrate that any wage differential was in fact justified by job-related factors other than sex. Prior pay, alone or in combination with other factors, cannot serve as a defense. 
. . . The statute places no limit on the factors an employer may consider in setting employees’ wages, but it places on employers the burden of demonstrating that sex played no role in causing wage differentials.
Yes, that's right, the Ninth Circuit has taken the position that it doesn't violate the EPA for an employer to take sex into account when setting pay. It merely prohibits employers from relying on sex to justify pay differentials.

First of all, this conclusion is flatly contrary to the EPA, which prohibits paying opposite-sex workers in the same job unequal wages unless the differential is based on a factor other than sex. If salary history is never a non-sex factor, as the Ninth Circuit has held, then it is an EPA violation for an employer to rely on it when negotiating a prospective employee's starting salary.

Second of all, it makes little sense to say that it is lawful for an employer to rely on prior pay (or any other sex-based factor) in setting pay but then say that the employer may not rely on that factor if it is later sued by someone who says he or she is paid less than someone of the opposite sex in the same job. Despite proclaiming its intention to prevent the perpetuation of sex-based pay discrimination, the Ninth Circuit has concluded that sex-based pay discrimination is not itself a violation of the EPA, only that an employer will not be able to defend itself if an employee can establish a prima facie case.

If the Ninth Circuit really thinks that prior salary is always tied to sex, then it must acknowledge the implications -- an employer cannot rely on salary history even if it is raised voluntarily by an applicant in the context of salary negotiations. The Ninth Circuit cannot have it both ways.

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.

Thursday, October 10, 2019

Oral Arguments in the Supreme Court LGBT Cases: Saturday Night Live Pat, Social Upheaval, and Potential Middle Ground (Updated 10/22/19)

The oral arguments in Bostock v. Clayton County and R.G & G.R. Harris Funeral Homes v. EEOC gave both sides reason for hope, but as with most arguments, the outcome is uncertain. Typically, the issue is framed as whether the employers win or LGBT advocates win. A third option in which the Supreme Court adopts a middle ground position is also a possibility, however. As discussed below, the Court could conclude that firing or refusing to hire someone for being gay, lesbian, or transgender constitutes unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964, but that denying bathroom access based on gender identity is lawful. 

In order to prevail, LGBT advocates must persuade at least one of the conservative Justices that firing someone based on LGBT status violates Title VII. Much of the media coverage of the oral arguments focused on Justice Neil Gorsuch's support of the textualist arguments advanced by LGBT advocates. A close reading of the transcript in Bostock, however, suggests that Gorsuch may have merely concluded that discrimination based on biological sex is unlawful even if the same action was also motivated by sexual orientation discrimination. In other words, sex discrimination and sexual orientation discrimination are distinct, and a decision motivated by sexual orientation discrimination is unlawful only if it is also motivated by sex discrimination. This 
statutory interpretation was reinforced by Pamela Karlan, who argued on behalf of the LGBT employees in Bostock. 

An exchange between Gorsuch and Jeffrey Harris, who argued against sexual orientation coverage, focused on a hypothetical situation in which a gay man could establish sex discrimination if he was treated less favorably than a heterosexual woman. Under these circumstances, Gorsuch concluded that even if sexual orientation discrimination was one of the reasons for treating the man worse, he was also treated worse because of his sex in violation of Title VII. This example tells us nothing about whether a gay man treated worse than a heterosexual man could allege sex discrimination.

Although it is unclear whether Gorsuch would conclude that discrimination based solely on sexual orientation is covered, the 
exchange between Karlan and Justice Samuel Alito during her rebuttal argument clearly supports the conclusion that it is not. Alito asked whether it would violate Title VII if an employer did not know an applicant's sex and rejected that individual based solely on the knowledge that the applicant is homosexual. Karlan thought that such a case would be rare and equated it with the androgynous character Pat from the "Saturday Day Night Live" TV series. Karlan agreed that under such circumstances, the applicant would not have a sex discrimination claim: 
If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex. But in the case where the person knows the sex of the person that they are firing or refusing to hire, and knows the sex of the people to whom that person is attracted, that is sex discrimination, pure and simple.
Despite Karlan's characterization of this kind of situation as an outlier, it is the very one that had already been offered by Harris in arguing that sexual orientation discrimination is not sex discrimination: 
If you get a resume that -- that has a name that could be male or female, and there's something on there suggesting that the person is gay and they're not hired for that reason, that would be sexual orientation discrimination that has absolutely nothing whatsoever to do with sex discrimination.
Following Karlan's reasoning, it also would not be unlawful to adopt a blanket policy against hiring any gay men or lesbians. An employer might, for instance, implement an online application procedure that first asked someone's sexual orientation and then automatically rejected anyone who responded that he or she is homosexual. Under Karlan's analysis, this would not violate Title VII because applicants would be rejected without any employer knowledge of their sex.

And if there was any room for doubt, Karlan ended her rebuttal argument by explaining that discrimination against gay men is fundamentally different from discrimination against lesbians and that gay men are harassed in a different way than lesbians are harassed. Thus, discrimination against a gay man or lesbian is a violation of Title VII to the extent he or she is treated differently not only based on sexual orientation but also sex. If based solely on sexual orientation, as would necessarily be the case in the absence of any information about a victim's sex, there would be no basis for a Title VII claim.

In my view, Karlan made a significant blunder. In her initial argument, she explained that a policy requiring both men and women to comply with sex stereotypes would unlawfully discriminate based on sex, so I would think it should follow that a blanket policy of not hiring gay men or lesbians would be unlawful even if an employer did not know someone's sex before rejecting them. During an oral argument, advocates have little time to respond and must think quickly, so slip-ups are inevitable. Karlan's exchange with Alito, however, was lengthy and demonstrated her confusion about the very legal theories she was espousing. Any contention that LGBT advocates' arguments are a slam dunk was refuted by this exchange.

Despite the confusion and missteps during oral argument, Justice Gorsuch may very well conclude that sexual orientation discrimination by itself is necessarily sex discrimination. But he appears unlikely to do so if he believes it would lead to "social upheaval."  Much as LGBT advocates tried to avoid the issue, Justices repeatedly pressed them about how to square a pro-LGBT decision with sex-specific dress codes and facilities. In response to a question by Justice Alito, David Cole, who represented Aimee Stephens, admitted that if Stephens had been fired for using the women's restroom instead of merely for being transgender, he believed it would have violated Title VII. Thus, even if transgender bathroom access is not specifically at issue in this case, a ruling for Stephens would also require, in Cole's view, that transgender individuals be permitted to use single-sex facilities consistent with their gender identity. Cole tried to downplay the impact, noting that transgender individuals are already using single-sex facilities consistent with their gender identities, but Gorsuch did not seem satisfied. Even Justice Sonia Sotomayor, who was generally supportive of Cole's and Karlan's arguments, was clearly concerned that some women would reasonably feel "intruded upon" if required to share facilities with a transgender woman who still had "male characteristics." 

If LGBT advocates are to prevail in this case, the answer may lie in the analysis of the bathroom issue advanced by Chief Justice John Roberts. In an exchange with Cole, Roberts said he understood the argument as to why discrimination based on transgender status constitutes sex discrimination. He wondered, however, whether the same applies for sex-specific policies. If a transgender woman is denied access to the women's room, is the discrimination still based on the individual's biological sex, which everyone seemed to acknowledge is male? Cole responded that a sex-specific bathroom policy is obviously sex-based, so the only question is whether the person challenging the policy is harmed by it. He explained that since a transgender woman would be harmed by having to use the men's room, she would have a valid sex discrimination claim.

Here, I think Roberts hit the nail on the head. If a transgender woman alleges discrimination in being denied access to the women's bathroom, she has not challenged the employer's policy of segregating bathrooms based on whether someone is male or female but the policy of determining access based on biological sex rather than gender identity. Consider, for instance, that if an African American individual challenged race-segregated bathrooms, he would not be seeking access to the whites-only bathroom, but an end to segregated facilities. A transgender plaintiff therefore does not challenge the policy of segregating facilities but the policy of determining which segregated facility someone uses. Such a policy might give rise to a claim of gender identity discrimination because it favors biological sex over gender identity, but it would not give rise to a claim of discrimination based on a particular individual's biological sex (i.e., sex assigned at birth), which is all Title VII covers.

Even if Cole is correct that denying bathroom access based on gender identity constitutes discrimination based on an employee's biological sex, there's the separate question of whether it still might be lawful. In an exchange with John Bursch, who represented R.G. & G.R. Harris Funeral Homes, Justice Sotomayor rejected the "parade of horribles" contention that adopting Cole's arguments would eliminate all distinctions between men and women. To the contrary, as Sotomayor pointed out, a transgender woman is still a biological man, so if it's permissible to require that a position be filled by a biological woman, then the position could lawfully be denied to a cisgender man or a transgender woman. Under Title VII, it is lawful to exclude a man from a position if being a woman is a bona fide occupational qualification for the position. This would be the case, for instance, if an employer were hiring someone to work in a women's locker room while it is occupied. If it would be lawful to refuse to hire a transgender woman to work in a women's locker room, then it should follow that she could also be denied access to the women's locker room to use the toilet or change her clothes.

Although Bostock and R.G. & G.R. Harris Funeral Homes involve the interpretation of a statute enacted over half a century ago, the public will surely view these decisions through a political lens. If the Court rules for the employers, that will be widely perceived as the product of a conservative Court antagonistic to LGBT rights. On the other hand, if the Court rules for the LGBT employees and sticks with the issues before it without addressing the bathroom issue, as LGBT advocates have asked it to do, the Court will be faulted for having raised more questions than it answered and paved the way for "social upheaval." These objections can largely be avoided if the Court ultimately adopts a compromise approach. As suggested by Chief Justice Roberts, it's possible that firing someone based on LGBT status would violate Title VII even if designating bathroom access based on biological sex would not violate Title VII. If a majority of the Court agree, LGBT advocates will win on the discharge issue, but have to wait on Congress before achieving full equality.

Update (10/22/19) - After I published this post, I ran across a blog post by Paisley Currah and a Slate commentary by Alexander Chen that are both critical of advocates' decision to frame Aimee Stephens as biologically male. I thought these worth mentioning because they raise the same points I raised above about the limitations of merely arguing that Title VII prohibits discrimination based on biological sex. Currah and Chen both noted that Chief Justice Roberts immediately recognized that Cole's arguments meant that excluding Stephens from using the women's bathroom would not be based on "sex" as defined by Cole. Oddly, although Chen faulted Cole for framing Stephens as an insufficiently masculine man rather than an insufficiently feminine woman, he lamented the Justices' failure to "understand transgender people" and predicted that their "ignorance could lead to a legal catastrophe." Clearly, any catastrophe would be the fault of Stephens's own counsel. 

Less clear is why Stephens's counsel chose not to argue that "sex" under Title VII encompasses anything more than biological sex. One possibility is that they did not recognize that the limited argument did not require employers to provide transgender bathroom access. Considering that Roberts and Sotomayor clearly saw the implications of treating Stephens as male for Title VII purposes, I'd think that the same would not have escaped LGBT advocates. Still, Cole seemed not to understand Roberts's question about bathroom access, which Roberts had to repeat several times. Moreover, the EEOC and lower courts (here and here) have mistakenly assumed that if it's unlawful to fire a transgender woman for being transgender, it must also be unlawful to bar her from using the women's bathroom.

Another possibility is that advocates believed that they could limit the focus of the case to the termination issue and that the Justices would be willing to leave the bathroom issue for another day. The more limited argument relies on the well-recognized definition of sex and is easily supported by statutory construction principles. As I've discussed previously, I don't think Title VII can be interpreted to require transgender bathroom access unless "sex" is interpreted as meaning not merely biological sex but also gender identity. This clearly would have been an uphill battle, but it might have been presented as a secondary argument that would convince the Justices that they don't need to reach the bathroom issue. They could hold that firing Stephens for being transgender unlawfully discriminated against her based on biological sex but then put off deciding whether "sex" also includes gender identity. If Title VII only prohibits biological sex, however, there would be no reason not to address the obvious implications, including bathroom access and Title VII's BFOQ exception.

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.