R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

APPLYING TITLE VII TO GENDER-IDENTITY DISCRIMINATION

Petitioner Harris Homes argues that Title VII’s prohibition on sex discrimination does not include gender-identity discrimination. Harris Homes asserts that including transgender discrimination within the scope of Title VII’s restrictions would bypass the commonly understood “ordinary meaning” of discrimination. It explains that the ordinary meaning of discrimination is limited to “less favorable treatment of people of certain classes” because of bias based on their sex. Harris Homes contends that being transgender is “legally irrelevant” to Title VII’s application because in 1964, when Title VII was enacted, “sex” exclusively meant “biologically male or female.” It also added that Congress has consistently distinguished sex classifications from gender identity and transgender status. Harris Homes asserts that employers discriminate based on sex under Title VII’s “ordinary meaning” only when they treat biological men better than biological women or vice versa. Harris Homes argues that because it would treat any woman who refuses to abide by its dress policy in the same manner as it treated Stephens, there is no sex discrimination. Harris Homes challenges Stephens’s analogy of transgender discrimination to religious discrimination under Title VII, asserting that while Title VII specifically defines its prohibition on religious discrimination as encompassing “all aspects of religious observance and practice,” the term “sex” receives no such definition. Harris Homes cautions that Stephens’s argument conflates “sex” and “gender” much in the same way that the plaintiff in Espinoza v. Farah Manufacturing Co., unsuccessfully attempted to conflate “citizenship” discrimination and Congressionally recognized “national origin” discrimination under Title VII.

The Respondent EEOC, also arguing for a reversal of the Sixth Circuit, emphasizes that when Congress intends to prohibit gender-based discrimination, it specifically amends statutes to say so. The EEOC explains that at the time of the 1991 Amendment to Title VII, Congress was aware that multiple circuit courts refused to extend Title VII to protect transgender discrimination but declined to make any related changes to encompass gender-based discrimination. According to the EEOC, by declining to draft transgender protections into the Amendment at that time, Congress effectively upheld the view that Title VII did not prohibit transgender discrimination. The EEOC posits that Stephens, as a biologically male transgender woman, cannot prove that Harris Homes illegally discriminated against her because she cannot show that Harris Homes would have treated a biologically female transgender man any better.

Stephens counters that Title VII specifically prohibits transgender discrimination because it bars employers from terminating their employees “because of [an] individual’s . . . sex.” Stephens maintains that, by terminating someone because they are not conforming with their employer’s view of how that person’s “biological sex” should present itself, the employer is necessarily using that person’s “sex” as it was determined at birth to discriminate against them. Stephens points out that if the Court were to exclude transgender discrimination from Title VII, it would be adding to the only codified exception to Title VII’s protections. This exception—the bona fide occupational qualifications exception—permits differing treatment “on the basis of . . . sex” when such treatment is reasonably necessary in a particular business or career context. She warns that because Congress has specifically contemplated and codified an exception to Title VII, the Court is not permitted to read in its own unwritten exception through “judicial fiat.”

Additionally, Stephens emphasizes that whether or not Congress understood Title VII to encompass transgender discrimination during its 1964 enactment has no bearing on how the Court determines the statute’s meaning and application today. Stephens notes that the Court has a history of reaching beyond Title VII’s original intent to determine if an action constitutes sex-based discrimination, as it did with different-sex and same-sex harassment. Quoting Justice Scalia in Onacle v. Sundowner Offshore Servs. Inc., Stephens raises the point that the Court recognizes types of sex discrimination which were “not the principal evil Congress was concerned with” in 1964, because they are covered under the statute’s plain text. Similarly, Stephens disputes that congressional actions since 1964 on sex-discrimination issues have any bearing on the proper understanding of Title VII. Stephens analogizes an employer’s decision to fire employees for their transgender status to the impermissible act of terminating employees because they changed religions. Stephens also counters Harris Homes’ analogy of transgender status to citizenship status under Espinoza by pointing out that while it is possible to discriminate against someone for being a non-citizen without knowing or discriminating against them based on their national origin, it is impossible to discriminate against individuals based on their transgender identity without necessarily knowing and factoring in their biological sex at birth.

SEX-STEREOTYPING UNDER PRICE WATERHOUSE V. HARRIS

Harris Homes contends that Price Waterhouse v. Hopkins does not apply when determining whether Title VII covers gender-based discrimination. Harris Homes argues that an employer’s use of sex stereotypes, according to the plurality in Price Waterhouse, might be indicative of sex-based discrimination but is not an independent cause of action by itself. Further, Harris Homes posits that sex stereotypes can be evidence of sex discrimination under Title VII, but that the alleged discrimination must still be proven by showing that one of the two sexes is being disadvantaged as compared to the other—at least where both sexes are similarly situated. According to Harris Homes, the Sixth Circuit classified sex itself as a stereotype, and warns that such a broad interpretation of sex stereotyping would defeat every sex-specific company policy in existence, and also be inconsistent with the Court’s precedent that differences in reproductive organs between men and women are not “gender-based stereotypes.” Harris Homes maintains that an employer who treats transgender men the same as transgender women is not engaging in “sex stereotyping” against those individuals under Title VII. It asserts that there can only be a discrimination claim when the sex stereotype is used to discriminate against a person of that sex. The EEOC rebuts Stephens’s argument that employers may not avoid Title VII claims by discriminating equally between both sexes by emphasizing that equal treatment of male and female sexes—no matter how objectionable that treatment is—can never actually be discrimination “because of . . . sex” under Title VII.

Stephens argues that any decision to terminate an employee because they are transgender necessarily engages in an impermissible form of “sex stereotyping” under Title VII, as recognized by the court in Price Waterhouse. Stephens contends that, similar to the plaintiff in Price Waterhouse, who was denied a promotion for failing to match the feminine stereotypes expected by her bosses, Stephens was terminated because she failed to conform to Harris Homes’s stereotypes for how men and women should dress in the workplace. Stephens asserts that terminating an individual for being transgender is innately a decision to terminate them for failing to meet the “sex stereotypes” for how people with a certain biological sex are expected to display themselves to the world. Stephens argues that in evaluating discrimination under Title VII, the issue is not whether men or women categorically have faced worse treatment than one another, but rather whether an individual employee has been mistreated “because of” their sex. Stephens points again to Price Waterhouse as an example of a sex-discrimination case which required no analysis of how men in the same position would have been treated for the Court to determine that the plaintiff was being discriminated against “because of” her sex. Stephens concludes that employers cannot fend off sex-discrimination claims under Title VII by ensuring that they discriminate against both men and women equally because of their respective sexes.