Friday, September 13, 2019

What does the adverse action standard have to do with whether federal law prohibits LGBT discrimination?

In May 2019, the Department of Justice filed a little-noticed brief opposing the grant of certiorari in Forgus v. Shanahan and arguing that Title VII of the Civil Rights Act of 1964 covers any discriminatory change to a term, condition, or privilege of employment, even if it does not result in a significant detrimental effect. From an administration that has typically been hostile to civil rights, that position may have seemed out of character. All the more so given that it departed from the government's former position and given that most courts require a showing of material adversity. So what gives?

The answer may lie in DOJ's argument that Title VII does not prohibit sexual orientation or gender identity discrimination. One of the pillars of that argument is that interpreting Title VII to cover LGBT discrimination would mean that some widespread and common employment practices are unlawful. In its brief in R.G. & G.H. Harris Funeral Homes, DOJ rejects the Sixth Circuit's conclusion that discrimination based on transgender status "'necessarily entails discrimination on the basis of sex' because one cannot treat a transgender person differently 'without considering that employee's biological sex.'" In DOJ's view, if Title VII requires employers' actions to be sex-blind, then sex-based dress codes and single-sex bathrooms are both unlawful. Judge James Ho advanced the same argument in his concurrence in Wittmer v. Phillips 66 Co., even going so far as to claim that the National Center for Lesbian Rights had conceded during oral argument that coverage of LGBT discrimination would mean the abolition of separate bathrooms and changing rooms for men and women. As DOJ and Judge Ho see it, treating men and women differently is therefore not sex discrimination if they are not similarly situated, such as with respect to sexual organs.

Aimee Stephens, who contends that she was fired by R.G. & G.R. Harris Funeral Homes for being transgender, initially responded to DOJ's warnings about a parade of horribles by not bothering to respond. Thus, in her initial brief, she argued that she was fired for being transgender, not solely for failing to comply with the employer's dress code for male employees, so the Supreme Court need not address the legality of sex-specific policies and their application to transgender employees. Technically, Stephens may have been right, but would the Supreme Court really be willing to rule that Title VII prohibits gender identity discrimination yet leave employers, as well as schools, which are covered by Title IX of the Education Amendments Act of 1972, wondering whether their bathroom, locker room, and dress code policies are lawful? And if the Supreme Court rules that Stephens was unlawfully fired for being transgender, but R.G. & G.R. Harris Funeral Homes is still free to require her to come to work wearing a man's suit and tie, would that be a real victory?

Thankfully, Stephens apparently saw the light, and in her reply brief, she tackles DOJ's contentions about sex-specific policies. She cites the widely accepted view that Title VII does not prohibit all sex-based terms or conditions of employment, only those that have a sufficiently adverse effect. Since most sex-based dress codes and sex-segregated facilities do not constitute materially adverse terms or conditions of employment, they do not violate Title VII.

The final piece of the puzzle is how sex-based policies should be applied to transgender workers. As already noted, it would be a hollow victory if the Court were to rule for Stephens but leave open the possibility that the employer could refuse to hire her back if she was unwilling to dress like a man. To address this issue, Stephens argues that the question of material adversity needs to be assessed from the standpoint of the individual alleging discrimination. As further explained in an amicus brief filed by five law professors, although most dress codes may not impose more than an innocuous burden on most employees, applying some of the same requirements to a transgender employee, "particularly one suffering from gender dysphoria, imposes a severe burden, and therefore discriminates against such an employee."

When the Supreme Court hears oral arguments on the LGBT cases in early October, one Justice to watch closely will be Brett Kavanaugh. While serving on the D.C. Circuit in 2017, then-Judge Kavanaugh wrote a concurrence in Ortiz-Diaz v. HUD contending that the circuit should reconsider precedent holding that lateral transfers are generally not actionable. In Kavanaugh's view, "transferring an employee because of the employee's race . . . plainly constitutes discrimination with respect to 'compensation, terms, conditions, or privileges of employment' in violation of Title VII." Although this interpretation could broaden Title VII coverage in general, it could leave little, if any room, for the Supreme Court to also interpret Title VII to cover LGBT discrimination.

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.