Thursday, July 4, 2019

Dress Codes and Gender Identity Discrimination

In a Washington Post opinion piece, Thomas Rost defends his decision to fire Aimee Stephens, a transgender woman, from her position as a funeral director after she told him she would begin wearing a skirt to work. The Supreme Court will be taking on Stephens's claim this fall in the case of R.G. & G.R. Harris Funeral Homes v. EEOC. The EEOC has characterized this case as more broadly addressing whether firing someone for being transgender is unlawful sex discrimination while Rost focuses on Stephens' violation of the dress code policy. This is an important distinction because the courts and the EEOC have generally recognized that sex-based dress codes are not unlawful. If firing someone for being transgender is unlawful but firing someone for violating a sex-specific dress code is lawful, then it may have been unlawful if Rost fired Stephens for telling him she was transgender but ok if he fired her because she refused to wear pants. Hopefully, the Supreme Court will avoid this unsatisfactory outcome.

Although Rost states that the EEOC has "since admitted it was wrong and now supports us," this isn't correct as far I know. The Department of Justice has indeed concluded that sex discrimination does not include gender identity discrimination, but the EEOC is an independent agency, and the agencies' disagreement has not gone unnoticed

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.