You’ve likely heard by now about the memo released by Jeff Sessions last week that reversed the Obama administration’s memo decreeing that protections laid out in Title VII of the Civil Rights Act of 1964 applied to transgender employees. This came several months after the Department of Justice clearly posited itself as opposing the application of Title VII in sexual orientation discrimination cases as well.
The headlines for these stories can be a little misleading or otherwise light on clarity in favor of attracting clicks or accurately communicating the emotional rather than factual impact of a thing. The Department of Justice’s position is alarming and a big deal, but Jeff Sessions didn’t create, pass or repeal a law. It’s a little bit more complicated than that, unfortunately, ’cause it took me a while to learn all this stuff and it’ll take you a while to read it! But it’s important to fully understand the entire situation here because we do have rights, and knowing our rights empowers us to exercise them. Employers need to know that trans people were winning employment discrimination cases before the Holder memo or the Sessions memo, and they still will, and that means they do not, in fact, have a “license to discriminate” against trans people. The Equal Employment Opportunity Commission is still on our side, and employers should know that too.
“No matter how many memos he issues, the law is on our side,” Lambda Legal Director of Strategy Sharon McGowan told The New York Times. “And so are the courts increasingly.”
I’m not a lawyer or legal scholar, so please do chime in in the comments with any additions or corrections.
What is Title VII?
The Department of Justice’s interpretation of Title VII of The Civil Rights Act of 1964, which addresses employment discrimination, is what this whole thing is about. The Civil Rights Act of 1964 prohibits discrimination based on sex, race, national origin and religion — but “sex” was not part of the initial proposal, it was added two days prior to the Bill’s passage in the house by a segregationist who hoped that specific addition would tank the bill. This means that particular element wasn’t exactly discussed, which is one of many reasons why its interpretation by judges in Title VII cases with LGBTQ plaintiffs has been pretty unpredictable. For those who aim to interpret laws based solely on the intention of the legislature who passed the law, two problems then arise: the law contains an element that was never actually hashed out by those who designed it, and the law was passed during a historical era in which nobody would’ve even had LGBTQ people on their radar.
Does Title VII protect employees from discrimination on the basis of sexual orientation or transgender status?
That’s the question! Some courts rule that it does and some rule that it doesn’t. Arguments that it does generally recognize that employment discrimination based on sex stereotypes is unlawful sex discrimination under Title VII. These stereotypes can include things like “men shouldn’t wear skirts” or “women should have long hair.”
An important precedent-setting case on this issue, Price Waterhouse v. Hopkins, happened in 1989, and concerned a woman who’d been denied a promotion “in part because other partners at the firm felt that she did not act as women should act.” She was told she needed to “walk more femininely, talk more femininely [and] dress more femininely” if she wanted a partnership. The Supreme Court ruled that this constituted evidence of sex discrimination.
However, this ruling relies on characteristics/behaviors not necessarily shared by all LGB people. Does “women should date men” count as a sex stereotype, too? The EEOC says it does, not everybody agrees.
Is the Attorney General, Noted Evil Tree Nymph Jeff Sessions, of the mind that Title VII covers LGBT discrimination?
The Attorney General is the head of the Department of Justice, and earlier this year, the Department of Justice showed its hand on the sexual orientation issue when it filed an amicus brief in Zarda v. Altitude Express (2010). Zarda, a skydiver, said his former employer Altitude Express had discriminated against him because of his sexual orientation. His claim — that sexual orientation is covered under Title VII and therefore his case should have its time to shine — was rejected in district court, but an appeal filed in January 2017 to the Second Circuit was successful. What’s a little bizarre here is that the DOJ invited itself to this particular party specifically to replace the vodka punch with poison punch and pick all the cashews and almonds out of the mixed nuts bowl, by which I mean “they filed an amicus brief expressing the opinion that sexual orientation is not covered under Title VII.” The DOJ often invites itself to parties like this, but usually they intervene to better enable punishing discriminators, not to inflict harm on one victim.
An “amicus brief,” by the way, is a legal document filed in appellate court cases by entities or people who aren’t actually part of the case but still would like to register their opinion on the matter in hopes of influencing the Judge’s opinion. For example, in United States v. Windsor, amicus briefs were filed by various religious organizations saying they were totally okay with gay people marrying each other.
Organizations like Lambda Legal believe that “Title VII of the Civil Rights Act, when properly understood, protects LGBT employees.” Many federal courts have ruled that Title VII protects sexual orientation and transgender workers. Some successful trans cases include:
- Smith v. City of Salem (6th Circuit 2004), in which the plaintiff alleged that they were suspended based on sex after they began to “express a more feminine appearance and notified his [sic] employer that he [sic] would eventually undergo a complete physical transformation from male to female.” The court determined that “discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior.”
- Mickens v. General Electric Co (W.D. Ky. 2016) in which a transgender plaintiff alleged he was unlawfully denied use of the male restroom close to his work station and then was fired for attendance issues resulting from having to travel a million miles to pee. The court cited Sixth Circuit precedent recognizing that in light of Price Waterhouse, the plaintiff stated a valid claim under Title VII sex discrimination, noting that, “[s]ignificantly, plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like.”
2011’s Macy v. Holder was an especially important case because this is when the 11th U.S. Circuit Court of Appeals affirmed the interpretation of Title VII to include trans employees, “establish[ing] definitively that federal transgender workers have protections under Title VII,” thus making it so federal trans employees were welcome to file complaints with the Equal Employment Opportunity Commission when they felt they’d been discriminated against. (This remains possible, as the EEOC is still on our side.) Even super-conservative asshat William Pryor of the United States Court of Appeals for the Eleventh Circuit noted in Glenn v. Brumby that since the Price Waterhouse case, “federal courts have recognized with near-total uniformity” that Title VII covers trans workers. A January 2014 paper from the Transgender Law Center declared this a “sea change” which lead them to believe that “employers are unlikely to prevail on this issue in most federal courts.”
So, to recap: most courts were ruling in favor of trans employees, using this reasoning, well before Holder’s memo. So, it wasn’t a huge surprise to the legal community when, in December 2014, Obama Attorney Genderal Eric H. Holder released said memo, determining that “the best reading of Title VII’s prohibition is sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”
How Did Jeff Sessions Justify His Ridiculous Point of View?
Pretty consistently with how the Trump administration seems to operate overall — by their own rules. Like okay sure, Title VII doesn’t reference “gender identity” but, as Eric B. Meyer points out in the Employer Handbook blog, “it doesn’t mention a “hostile work environment” either. Yet, the U.S. Supreme Court has told us that’s unlawful under Title VII. The same goes for sex stereotyping.”
In his memo, Sessions cited the dictionary definition of men and women as well as a dissenting opinion in Hively v. Ivy Tech (in which the majority of judges agreed that Title VII does cover homos), which is fine but also ripe to be side-eyed. Lawyers can cite whatever funny sources they want to, but neither a dictionary or a dissenting opinion have any authority and a judge does not have to consider them.
In Zarda v. Altitude Express, Deputy Assistant Attorney General Hashim M. Mooppan basically argued that “sex discrimination must also involve a belief that one sex is inferior to the other. Anti-gay discrimination does not rest on such a belief, and so it is not sex discrimination.” This approach could also apply to trans cases. The problem with this approach is that it is intellectually dishonest and absurd and also misrepresents extensive case law.
That’s where we can find hope in all this: these motherf*ckers are almost definitely incorrect, and most judges know that.
What Is the Real-World Impact of the DOJ’s New Approach?
Two main things:
- The Department of Justice is unlikely to investigate claims of this nature or file charges themselves against employers for anti-LGBT discrimination and it will not represent employees filing those cases.
- If you are actually filing a lawsuit against an employer for firing you or treating you unfairly ’cause you’re LGBT, the DOJ will not help you out.
However, there was no guarantee the DOJ would’ve helped you out before this memo came out either, and you don’t need the DOJ’s support to win a case.
The Executive Branch doesn’t really instruct judges on how to do their job (aka “how to rule”). Only Congress and higher-up judges can do that. The Department of Justice, in this case, is telling U.S. Attorneys how to do their job. (“U.S. Attorneys,” by the way, does not mean “every attorney in the United States.” It means Attorneys employed by United States Department of Justice.)
Yes, an employer could more license to not hire or to fire an LGBT employee for being LGBT because of their interpretation of DOJ’s position, which’s probably the more significant concern here, especially for trans and gender non-conforming people who face incredibly disheartening rates of unemployment and workplace harassment. But the case would hardly be a slam dunk. Regardless, most employers do want to follow the law and most employers do aim to avoid the publicity and cost of a lawsuit.
How might this play out in court?
LET’S TALK ABOUT THE SKYDIVER AGAIN. When the DOJ chimed in on Zarda v. Altitude Express, the U.S. Court of Appeals for the 2nd Circuit did not give a single fuck. They hadn’t asked for the DOJ’s input, and that brief was described as Slate’s legal blogger as “startlingly incoherent” and “seemingly the product of political pandering rather than legal reasoning,” which was reflected in how the judges handled said input, which, by the way, was filed in opposition to The Equal Employment Opportunity Commission. Judge Rosemary Pooler said, in court, “We love to hear from the federal government, but it’s a bit awkward to hear from them on both sides.”
The EEOC still holds that Title VII does prohibit discrimination based on sexual orientation and gender identity. Chai Feldblum, the (lesbian!) Commissioner of the EEOC, has declared anti-LGBTQ employment cases a focus of her commission’s present work and furthermore, “no new chair can come in and decide LGBT charges will not be a priority.” The EEOC is looking at a potential Republican majority on its commission next year, however, and I’m honestly not entirely clear on what that might mean for us. Feldblum is confident that “the train has left the station” on this issue.
When are you still protected?
If your state has its own anti-discrimination statutes that include gender identity, then you’re still protected in state courts. Here’s a map of where these protections exist, and also note that at least 255 cities and counties have their own LGBT anti-discrimination protections as well.
Many corporations who operate in multiple states will default to the strictest law of any state they operate in when devising their own anti-discrimination policies. 82 percent of Fortune 500 companies have full gender identity protections, and 96 percent of the 887 businesses listed in the Human Rights Campaign’s Corporate Equality Index offer explicit gender identity non-discrimination protections in the U.S., up from 5 percent in 2002.
Regarding the neverending confusion presented by Title VII’s interpretation in court, The HRC writes: “Despite this patchwork of state laws and federal guidance, private sector employers have far outpaced lawmakers in the implementation of fully inclusive non-discrimination polices.”
As seems to be the case for so many elements of the Trump Administration’s ideas and actions, let us all be grateful that the Executive Branch and Judicial Branch are separate entities and that there are judges out there who are a lot smarter than our terrible president. Let us all be grateful for the ACLU and Lambda Legal and all the attorneys out there who will fight for LGBTQ people.
What Would Fix All Of This Confusing Shit?
ENDA! We need ENDA. We need a federal non-discrimination act protecting lesbian, gay, bisexual, transgender, gender non-conforming and/or queer workers. Then, everybody can stop going back and forth about Title VII and instead be clear that it’s not okay to discriminate against LGBT people, in hiring or in firing or in creating comfortable work environments. But with the world imploding around us and the Trump administration being a non-stop shitshow, who knows when that’ll happen.