February 22, 2020
by Taylor Ashworth, Senior Associate
Congress enacted Title VII of the Civil Rights Act of 1964 (“Title VII”) to make protected characteristics, including sex, irrelevant to employment decisions. Compliance with Title VII requires employers to evaluate employment applicants on their merits rather than their sex. In Price Waterhouse v. Hopkins, the United States Supreme Court established that employment discrimination based on an individual’s non-conformance to sex-based stereotypes violates Title VII.
In Hopkins, the Court found that an employer had denied a female employee a promotion because the employee did not conform to expected female stereotypes due to her apparent masculinity. In its analysis, the Court quoted one of its earlier decisions, stating, “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” In accordance with congressional intent, the Supreme Court in Hopkins concluded that the employer violated Title VII.
In addition to discrimination on the basis of sex, circuit courts—via an extension of the Hopkins Court’s reasoning—have extended Title VII to prohibit discrimination based on gender identity. The Supreme Court has never held that discrimination against someone because he or she is transgender constitutes discrimination “on the basis of sex” within the language of Title VII. The high court’s silence on the issue is, however, coming to a close, as the Court is set to deliver the long-awaited answer this Spring in connection with R.G. & G.R. Harris Funeral Homes Inc.
II. G. & G.R. Harris Funeral Homes Inc. Background
In October 2019, the Supreme Court heard oral arguments in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The case involved Harris Funeral Homes (“Harris Homes”) firing a transgender female employee, Aimee Stephens. Stephens was born biologically male and presented as a male until five years after her employment began in 2007. After battling gender dysphoria for years, Stephens began to identify as a woman and soon after shared her intent to undergo sex reassignment surgery to become a woman in a letter to Harris Homes. In the letter, Stephens stated that before having the surgery, she must live and work full-time as a woman for one year.
Harris Homes enforced a written, sex-specific dress code requiring male employees to wear suits and ties and female employees to wear skirts and business jackets. Stephens was aware of Harris Homes’s dress code and planned to comply with the dress code by wearing a skirt and business jacket during the one year prior to her surgery. Weeks after the letter to Harris Homes, but before Stephens began dressing as a woman, Harris Homes terminated Stephens. Funeral home director Thomas Rost expressed concern that Stephens coming to work dressed as a female would distract its clients and, therefore, was unacceptable. Rost stated that Stephens was terminated because of her refusal to wear the prescribed uniform and intent to violate the dress code while at work.
Following her termination, Stephens filed a charge with the Equal Employment Opportunity Commission (EEOC), asserting that she was terminated due to “sex and gender identity.” The EEOC has held that intentional discrimination against a transgender individual because of that person’s gender identity is discrimination based on sex and therefore violates Title VII. Confirming this holding once again, the EEOC found reasonable cause to believe that Harris Homes had discharged Stephens based on sex and gender identity in violation of Title VII. The EEOC filed suit on behalf of Stephens, alleging that Harris Homes had fired Stephens for the following reasons: “Because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [Harris Homes’s] sex- or gender-based preferences, expectations, or stereotypes.”
III. The District Court and Sixth Circuit Decisions
The district court for the Eastern District of Michigan denied Harris Homes’s motion to dismiss. The court stated that because “transgender or transsexual status is currently not a protected class under Title VII,” the EEOC’s Title VII suit could only proceed on a theory that Harris Homes had engaged in improper “sex-stereotyping.” “Sex stereotyping is when one has a predetermined opinion about how “someone should be, act, or behave on the basis of that person’s sex.” Following discovery, the district court granted summary judgment in favor of Harris Homes. In doing so, the court rejected Harris Homes’s view “that its enforcement of the sex-specific dress code did not constitute impermissible sex stereotyping.” The court still granted the motion based on Harris Homes’s exemption from Title VII based on other grounds. The EEOC appealed, and the Sixth Circuit Court of Appeals reversed.
Although the Sixth Circuit did not agree with the district court about the other grounds for dismissal, the Sixth Circuit did agree with the district court that Harris Homes violated Title VII by firing Stephens because of her failure to conform to sex stereotypes. The court cited Hopkins and Smith stating that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Additionally, the Sixth Circuit held that the district court improperly precluded the EEOC from pursuing a claim based on the idea that gender-identity discrimination categorically violates Title VII. The court instead found that Title VII prohibits discrimination against transgender individuals based on their status as transgender for two reasons. First, the court reasoned “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The court also stated: “discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.” Harris Homes appealed following the Sixth Circuit’s decision, and the Supreme Court granted the EEOC’s certiorari petition, in part, to address whether Title VII prohibits discrimination against transgender individuals based on: (1) their status as transgender and (2) whether discrimination against a transgender individual is considered sex stereotyping under Hopkins.
During oral arguments, Supreme Court Justice Gorsuch expressed concern about the far-reaching implications that the Court’s decision may have if it finds discrimination against transgender individuals a violation of Title VII. Justice Gorsuch, whose main concern seems to be judicial overreach, questioned whether the Court should consider the fact that Congress likely did not contemplate transgender individuals when enacting Title VII. In Justice Gorsuch’s opinion, making discrimination against transgender individuals a per se violation of Title VII is better left to Congress.
Under Hopkins, a decision in favor of Stephens aligns with the prohibition of discrimination because of sex-based stereotypes. Even the most restrictive view of the word “sex” fits this line of reasoning. Harris Homes’s dress code not only assumes, but also requires that men dress one way and women dress another. This dress code unambiguously demonstrates a stereotypical expectation of what each sex is to wear. Harris Homes fired Stephens based on her intent to dress as a female when her biological sex, established at birth, was male. By choosing to dress as a female, Stephens was dressing in a way that is not stereotypical of a biological male. Therefore, when Harris Homes fired Stephens for not adhering to this stereotype, it necessarily violated Title VII. By finding in favor of Stephens on the basis of sex-based stereotyping, the Supreme Court would not expand the scope of the word “sex” to include gender identity and improperly usurp legislative power. This approach, however, may still leave transgender individuals open to discrimination.
The Department of Justice’s amicus brief argued in support of Harris Homes that under United States Supreme Court precedent, proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex. Under this logic, a transphobic employer does not necessarily “‘deploy[ ] a stereotype about men or about women to the disadvantage of either sex’”; rather, that employer relies on ‘a belief about what all people ought to be or do’” Under this reasoning, an employer is free to discriminate against individuals on the basis of sex-based stereotyping, as long as the employer treats both men and women the same way. Not only does this approach leave transgender individuals at risk, it could also have negative effects on cisgender women who are masculine or cisgender men who are feminine.
Without an affirmative declaration that discriminating against someone based on their status as transgender violates Title VII, employers may be free to fire or refuse to hire a transgender individual, as long as they refuse to hire both transgender males and transgender females. On the other hand, the Supreme Court expanding the meaning of the word “sex” to include gender identity may, as Justice Gorsuch fears, usurp Congress’s legislative authority. In order to balance the two concerns, the Supreme Court should clarify sex stereotyping as an independent claim of sex-discrimination that does not require a claimant to show that an employer treated members of one sex less favorably than similarly situated members of the other sex. As a group of employment discrimination law scholars stated in their amicus brief, “Title VII’s anti-stereotyping principle derives from the statutory text that expressly focuses on the individual, not groups.” Therefore, to protect transgender individuals, without usurping Congress’s legislative authority, the United States Supreme Court should declare: (1) that discriminating against an individual because he or she is transgender is sex discrimination under the theory of sex-based stereotyping, and (2) that discrimination on the basis of sex-based stereotypes does not require a showing of similarly situated members of the other sex being treated more favorably.
 See Price Waterhouse v. Hopkins, 490 U.S. 228, 243 (1989).
 Id. at 251 (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”).
 Id. at 256.
 Id. at 251 (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)).
 Id. at 256.
 See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011).
 Scott Bomboy, Supreme Court Bears Two Major Cases Today on Title VII and Discrimination, Const. Daily (Oct. 8, 2019), https://constitutioncenter.org/blog/supreme-court-hears-two-major-cases-today-on-title-vii-and-discrimination.
 Brief for Respondent Aimee Stephens, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp’t Opportunity Comm’n, 139 S. Ct. 1599, No. 18-107 (June 26, 2019), available at https://www.supremecourt.gov/DocketPDF/18/18-107/104141/20190626105814174_No%2018-107%20RG%20and%20GR%20Harris%20Funeral%20Homes%20v%20EEOC%20and%20Aimee%20Stephens%20Brief%20for%20Respondent%20Aimee%20Stephens.pdf.
 Id. at 4.
 Gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).
 Id. An individual is often required by their doctor to dress as their identified gender for at least one year prior to undergoing sex reassignment surgery. See World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender–Nonconforming People, Version 7 (2011).
 Id. at 3.
 Id. at 4.
 Id. at 5.
 Before filing a lawsuit against an employer alleging discrimination on the basis of sex an employee must first file a charge with the EEOC. In most cases, the EEOC can file a lawsuit to enforce the law only after it investigates and makes a finding that there is reasonable cause to believe that discrimination has occurred. Filing a Lawsuit, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/employees/lawsuit.cfm (last visited Feb. 5, 2020).
 Brief for Respondent Aimee Stephens at 5–6, 139 S. Ct. 1599.
 Id. at 6.
 Brief for Respondent Aimee Stephens at 6, 139 S. Ct. 1599.
 Id. at 6–7.
 See Bridget Miller, What is Sex Sterotyping?, HR Daily Advisor (Jun 22, 2017), https://hrdailyadvisor.blr.com/2017/06/22/what-is-sex-stereotyping/.
 Brief for Respondent Aimee Stephens at 6, 139 S. Ct. 1599.
 Brief for Respondent Aimee Stephens at 7–8, 139 S. Ct. 1599.
 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004).
 Brief for Respondent Aimee Stephens at 8, 139 S. Ct. 1599
 Equal Emp’t Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 575 (6th Cir. 2018), cert. granted in part sub nom. R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., 139 S. Ct. 1599 (2019).
 R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp’t Opportunity Comm’n, 139 S. Ct. 1599 (2019).
 Transcript of Oral Argument at 26–27, R.G. & G.R. Harris Funeral Homes, 139 S. Ct. 1599.
 See supra notes 14–15 and accompanying text.
 Chandra Davis, Dispute Between EEOC and DOJ: LGBTQ Protections Under Title VII (Sept. 19, 2019), https://www.theemploymentlawsolution.com/eeoc/dispute-between-eeoc-and-doj-lgbtq-protections-under-title-vii/.
 See https://www.supremecourt.gov/DocketPDF/18/18-107/106940/20190703112735313_Brief%20of%20Employment%20Discrimination%20Law%20Scholars%20as%20Amici%20Curiae.pdf Brief of Employment Discrimination Law Scholars as Amici Curiae in Support of the Employees at 25–26, Nos. 17-1618, 17-1623, 18-107 (U.S. July 3, 2019) (quoting Zarda v. Altitude Express, Inc., 883 F.3d 100, 158 (2d Cir. 2018) (en banc) (Lynch, J., dissenting)). Although Judge Lynch’s dissent in Zarda was discussing homophobic employers rather than transphobic employers, the same logic applies.
 According to an amicus brief submitted by Employment Discrimination Law Scholars, this approach is in accordance with United States Supreme Court precedent and the statutory text of Title VII. Brief of Employment Discrimination Law Scholars as Amici Curiae in Support of the Employees at 7, 139 S. Ct. 1599.
 Id. at 4.