Following on the heels of the Second Circuit's decision in Zarda v. Altitude Express, holding that Title VII prohibits sexual orientation discrimination, the Sixth Circuit is the second court of appeals in the last couple weeks to take on the dress code issue. As I've discussed before, the Second Circuit's attempt to tackle this issue was pretty much a disaster. In the main opinion in Zarda, Judge Robert Katzmann explained that sex-specific dress codes have been held to be lawful because they do not treat members of one sex worse than members of the other sex. In other words, the sexes are treated differently, but those differences do not burden members of one sex more than members of the other sex. The implications of this analysis for transgender workers are obvious: a transgender woman can be required to wear male attire.
I had high hopes for the Harris Funeral Homes decision. The good news is that the Sixth Circuit avoided the trap that the Second Circuit fell into. The Sixth Circuit criticized Jespersen v. Harrah's Operating Co., the leading court of appeals decision upholding sex-specific dress codes, noting that the Sixth Circuit had previously held in Smith v. City of Salem that requiring an employee to dress or act in a manner consistent with his or her sex violates Title VII. The bad news, however, is that the court has issued an utterly baffling decision that's impossible to make heads or tails of.
The court repeatedly signals in Harris Funeral Homes that it is not addressing the permissibility of sex-specific dress codes in general, saying that the issue is "not before the court." Yet ultimately, the court apparently thought that the defendant would violate Title VII not only if it fired Stephens for being transgender but also if it fired her solely for refusing to comply with a sex-specific dress code. Thus, the court rejected the defendant's argument under the Religious Freedom Restoration Act that allowing the defendant to impose a sex-specific dress code would be a less restrictive alternative:
The Funeral Home's proposed alternative -- to "permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work" -- is equally flawed. The Funeral Home's suggestion would do nothing to advance the government's compelling interest in preventing and remedying discrimination against Stephens based on her refusal to conform at work to stereotypical notions of how biologically male persons should dress, appear, behave, and identify. Regardless of whether the EEOC has a compelling interest in combating sex-specific dress codes -- a point that is not at issue in this case -- the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex.The court's discussion is nonsensical. If a sex-specific dress code is not a less restrictive alternative because the government has a compelling interest in ensuring that the defendant does not discriminate based on sex, then the court necessarily must be concluding that a sex-specific dress code impermissibly discriminates against Stephens based on her sex. The court cannot have it both ways.
So what's going on here?
One possibility is that the court mistakenly believes that, even if sex-specific dress codes do not discriminate based on sex, they constitute unlawful sex stereotyping against Stephens. This understanding is reflected in the court's apparent view that Stephens has two distinct claims: unlawful sex stereotyping and unlawful sex discrimination. Title VII, however, does not prohibit sex stereotyping per se. Rather evidence of sex stereotyping can help establish unlawful sex discrimination. As a result, if a sex-specific dress code discriminates against Stephens because it requires her to dress in attire stereotypically associated with biological males, then the dress code obviously discriminates against all biological males and biological females.
Another possibility is that the court somehow believes that a sex-specific dress code can violate Title VII where, regardless of whether it discriminates against someone for being male or for being female, it discriminates based on gender identity. If so, then the court misunderstands the limits of its own legal analysis. Even if the court correctly concluded that Title VII prohibits discrimination based on transgender status, that conclusion comes with a significant caveat. In concluding that transgender discrimination is a form of sex discrimination, the court explains at one point: "[W]e ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women's dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens's sex impermissibly affected [the employer's] decision to fire Stephens." In the same vein, the court elsewhere explains: "Because an employer cannot discriminate against an employee for being transgender without considering that employee's biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex -- no matter what sex the employee was born or wishes to be." Thus, as explained by the court, although Title VII does not prohibit discrimination based on gender identity in and of itself, gender identity discrimination necessarily means treating someone differently based on his or her biological sex, which is prohibited by Title VII.
BUT, to the extent gender identity discrimination does not treat someone worse for being a man or for being a woman, it is not a form of sex discrimination and therefore not covered by Title VII. For example, Title VII prohibits facially neutral employment practices that disproportionately exclude members of one sex unless justified by business necessity. A policy that disproportionately excludes transgender individuals or non-transgender individuals, however, would not implicate Title VII, because even under the analysis in Harris Funeral Homes, an individual's sex is whether that individual is male or female and not whether that individual is transgender or non-transgender.
The need to distinguish gender identity discrimination resulting in sex discrimination from pure gender identity discrimination is especially important in the context of access to single-sex facilities. In Harris Funeral Homes, the court cites an earlier decision (Dodds v. Department of Education) refusing to stay a preliminary injunction ordering a school district to treat a transgender girl as a female and allow her to use the girl's bathroom. In that case, the court reasoned that circuit precedent prohibits sex stereotyping based on gender non-conforming behavior. As suggested by this analysis, the Sixth Circuit may mistakenly believe that Title VII prohibits sex stereotyping independently from sex discrimination or may mistakenly believe that Title VII prohibits gender identity discrimination independently from sex discrimination.
In citing Dodds, the court suggests that Title VII requires bathroom access consistent with an individual's gender identity, but that is not supported by the court's own analysis upholding the EEOC's claim on behalf of Stephens. If a transgender woman is treated differently from non-transgender women with respect to bathroom access, then she is being treated differently solely because of her gender identity and not also because of her biological sex.
Conceivably, prohibiting a transgender woman from using the women's bathroom might be seen as sex discrimination rooted in the stereotype that women should not be masculine. Such a Title VII claim, however, would require that a transgender woman be regarded as "female," as noted in the Dodds case. In Harris Funeral Homes, the court refers to Stephens repeatedly as being biologically male, ponders whether Stephens would have been fired if she were a woman, and explains that it is using the pronoun "she" in accordance with Stephen's preference. In short, the court obviously views a transgender woman as male. Further, the court explicitly adopts the reasoning in Schroer v. Billington, holding that discrimination based on a change in sex violates Title VII, and thus, the refusal to hire an applicant "after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of . . . sex.'" The implication seems to be that a transgender woman would be entitled to use the men's bathroom until sex reassignment surgery and then the women's bathroom. For bathroom access to turn solely on gender identity, the term "sex" in Title VII must mean more than biological sex.
In his 1984 decision in Ulane v. Eastern Airlines, Inc. Federal District Court Judge John Grady interpreted Title VII in just that way:
I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, "sex," as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.Under this interpretation, Title VII would prohibit gender identity independently from biological sex. A dress code or bathroom policy might discriminate based on gender identity even if it does not discriminate based on sex. Because Grady's interpretation was reversed on appeal, however, no court applies this standard.
For more on this case, see these prior posts on the oral argument on appeal and the district court decision.
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.