KemLaw

For a number of years now, the Equal Employment Opportunity Commission (EEOC) has held that job discrimination based on gender identity or sexual orientation is considered sex discrimination.

That’s been the agency’s position since the Obama Administration took an official position on the matter (even though the Trump Administration has since reversed that position).

Well, the U.S. Justice Department has just filed a brief that takes the opposite view for a case before the U.S. Supreme Court.  The matter in question tests whether transgender individuals are in fact protected by the 1964 Civil Rights Act.

The Supreme Court is set to hear three cases on transgender rights this Fall.

Here is a bit from the Justice Department’s brief:

Title VII makes it an unlawful employment practice for a covered employer to fire, refuse to hire, or “otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). The question on which this Court granted review is whether that prohibition extends to “discrimination against transgender people” as such. 139 S. Ct. 1599 (2019). It does not. The statutory text 15 and this Court’s decisions make clear that Section 2000e-2(a)(1)’s prohibition on sex-based disparate treatment bars only employment practices that treat women less favorably than similarly situated men because they are women, or vice versa. Treating a transgender person less favorably than a non-transgender person because he or she is transgender does not fall within that bar.

…Title VII’s relevant provision, 42 U.S.C. 2000e-2(a)(1), prohibits “discriminat[ion] * * * because of” certain enumerated traits. Ibid. Transgender status is not among the traits enumerated. Section 2000e-2(a)(1) does bar discrimination “because of * * * sex,” ibid., but when Title VII was enacted in 1964, the ordinary public meaning of “sex” was biological sex, not transgender status. Subsequent action by Congress confirms that it has never understood or intended Title VII to cover transgender individuals as a protected class. Stephens’s and the Sixth Circuit’s core contention—that discrimination based on transgender status necessarily entails sex discrimination—would transform Title VII into a blanket prohibition on all sex-specific workplace practices. That statute would bear no resemblance to how Title VII has been understood by Congress or the public from 1964 to the present.

DOJ’s brief goes onto say that it’s up to Congress and not the courts to amend the law.  The Democrat controlled House of Representatives did pass legislation in May of 2019 to codify these protections – however, the U.S. Senate is unlikely to approve the bill.

What’s the future hold?

Stay tuned.  We will be following this one.

If you’re an employer and have questions about labor and employment law, including questions about employment discrimination, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

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