The Sophisticated Employer Blog

Yes, we live in confusing times. Bi-partisanship seems all but over. 

But now, there is a split within the Trump administration between the U.S. Department of Justice and the Equal Employment Opportunity Commission (EEOC) concerning coverage under Title VII, the federal civil rights law, for employees who are transgender.

This is quite remarkable. Let’s look at how this controversy developed.

You might recall that a little over a year ago, Attorney General Jeff Sessions issued a memo announcing a reversal in a three-year-old Justice Department policy that transgender workers were protected under federal law from discrimination. 

In his Oct. 4, 2017 memo, Sessions stated “Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status." Sessions’ memo further indicated that the “Department of Justice will take that position in all pending and future matters...” Well, Sessions has now made good on that promise.

Pending before the U.S. Supreme Court is a petition for review of R.G. & G. R. Harris Funeral Homes, Inc. v. EEOC (the “funeral home case”), one about which I have previously written. This is the case that originated in Inkster, Michigan involving the termination of a funeral home worker who had been presenting as a male after announcing she was transitioning to a female and that in the future she would no longer come to work dressed as a man, but would dress as a woman.

In July, the funeral home filed a petition seeking review by the Supreme Court of the opinion issued by the U.S. Court of Appeals for the Sixth Circuit. Only the Justice Department has the authority to represent the federal government before the Supreme Court. Last week, the Justice Department, on behalf of the EEOC which prevailed at the Sixth Circuit, filed a brief with the Supreme Court asking the justices to consider reviewing the Sixth Circuit opinion, but only if the court grants review of Altitude Express, Inc v Zarda (2^nd Cir.) and/or Bostock v Clayton County (7^th Cir.). Both of those decisions ruled that Title VII protects workers from discrimination based on sexual orientation.

The Justice Department’s brief argues that until these two circuits ruled in this manner (both sitting en banc, meaning all of the judges on the bench at that circuit) all federal circuit courts had unanimously concluded that Title VII afforded no such protection. Because the Sixth Circuit relied on those opinions when ruling in favor of the EEOC in the funeral home case, it asks the justices to review the funeral home case if it reviews the correctness of those opinions.  But, if it denies the petitions to review those two cases (which may signal the justices believe those decisions were correctly decided), then it should also deny review of the funeral home case at this juncture (apparently concerned about an adverse ruling).

The most shocking statement in the Justice Department’s brief, which was filed on behalf of the Respondent, the EEOC, is “To be sure, the United States disagrees with the court of appeals’ decision.” Seriously? The respondent (EEOC) prevailed in that decision!  This conflict between the Justice Department and the EEOC is an astonishing development in the administration.

Solicitor General Noel Francisco, who represents the federal government before the Supreme Court, said the Sixth Circuit got it wrong because “sex” as defined under Title VII does not refer to gender identity. But the EEOC was the party that convinced the Sixth Circuit that the term did.

The EEOC is not backing down from its position. Affording protections to the LGBTQ community is one of the EEOC’s strategic initiatives and acting Chair Victoria Lipnic (who is a Republican) intends on pressing forward unless the Supreme Court rules against the EEOC’s position. Acting Chair Lipnic was tapped for this role by President Trump on Jan. 25, 2017. 

The EEOC is composed of five members appointed by the President, who also appoints the general counsel to provide direction and supervision to the EEOC’s litigation. Currently this position is vacant along with two vacant member positions because the nominations have stalled in Congress.

So what now for employers? I am advising my clients to continue to include sexual orientation and transgender as protected statuses in their equal employment opportunity and harassment policies. 

Sooner or later, this will all be sorted out, but in the meantime, the EEOC will continue to protect the rights of LGBTQ employees and failure to include these statuses in the policies will be adverse to any defense of such discrimination claims.