DOJ reaffirms Title VII stance clash with EEOC in court filing

Dive Brief:

Transgender persons are not protected from discrimination at work on the basis of their transgender status under U.S. federal law, the U.S. Department of Justice (DOJ) wrote in an amicus brief to a case before the U.S. Supreme Court (R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, et al. No. 18-107 (S.C. Aug. 16, 2019)).
Per the brief, penned by a group of DOJ staff including U.S. Solicitor General Noel Francisco, Title VII of the Civil Rights Act of 1964 "simply does not speak to discrimination because of an individual's gender identity or a disconnect between an individual's gender identity and the individual's sex."
The case is one of three that sit before the High Court that deal with the rights of LGBTQ workers under Title VII. The 6th U.S. Circuit Court of Appeals previously ruled in Harris that the employer in the case violated Title VII by firing an employee because of her failure to conform to sex stereotypes, as well as her transgender status.

Dive Insight:

Sharon Fast Gustafson, General Counsel for the U.S. Equal Employment Opportunity Commission, did not sign the DOJ's brief. The two agencies have been at odds over the issue of whether Title VII protects transgender employees on the basis of their transgender status ⁠— with Victoria Lipnic, the EEOC's former acting chair and current commissioner, previously calling the agencies' positions "contrary" to one another.

The two organizations diverge on whether the term "sex," as used in Title VII, encompasses gender identity. But DOJ also took up argument in its brief against the idea that sex stereotyping in and of itself is a violation of Title VII. Evidence of sex stereotyping, the DOJ wrote, "may be relevant in demonstrating that an employer was motivated by sex in taking the challenged employment action. But it does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex."

DOJ won't be the only voice writing to the Supreme Court in the trio of cases. A group of large employers signed onto an amicus brief filed by a group of LGBTQ advocacy groups in support of the finding that Title VII's prohibition of discrimination based on sex encompasses both sexual orientation and gender identity. "Our nation's employers and employees would benefit from this Court's recognition that members of the nation's large and productive LGBT workforce are protected from such sex-based discrimination in the workplace," the brief said.

As they wait for the outcome of court proceedings, employers have other developments to watch on the issue. For example, the EEOC in a 2018 amicus brief told the 5th U.S. Circuit Court of Appeals its position that an employee's belief that workers are protected from discrimination based on their sexual orientation can create retaliation protections — regardless of whether Title VII includes those protections.

Proactive employers looking to support transgender workers during their transition have several strategies at their disposal, employment experts have told HR Dive.