By Jeff Jones
Special to the UCBJ
On October 4, Attorney General Jeff Sessions issued a memorandum that garnered headlines as a major reversal of fortune for workplace protections for transgender workers. In practical terms, the DOJ’s memorandum means it will continue to be in conflict with the EEOC’s position, at least in the short term, and that local and state government employees will not benefit from its litigation assistance.
The memorandum has been introduced to support the recent oral argument of a private employer seeking to defeat a claim of discrimination by a transgender former employee before the Sixth Circuit Court of Appeals, but its power in that case is limited to the persuasiveness of its arguments.
The breadth of the memorandum’s actual impact remains to be seen, and it does not make sense at the moment for any employer, public or private, to consider rolling back approaches to gender nonconforming behavior in the workplace.
By way of background: the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission share enforcement authority for state and local government employers under Title VII of the Civil Rights Act of 1964. While the EEOC investigates (and attempts to conciliate) charges, other than the charging individual, it is the DOJ, rather than the EEOC, that has authority to sue those employers. Likewise, only the DOJ can institute an independent investigation against those entities for potential Title VII violations.
Since 1989, discrimination based on gender stereotyping has fallen within Title VII’s prohibitions. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the Sixth Circuit, which includes Tennessee, this prohibition includes failure to conform with gender norms, including behavior associated with gender transitions. Smith v. City of Salem, 355 F.3d 566, 575 (2004).
In 2012, the EEOC adopted the position that discrimination based on an individual’s transgender status (as opposed to failure to conform to gender-based stereotypes) is prohibited under Title VII. Macy v. Holder, No. 0120120821 (EEOC, Apr. 20, 2012). Macy was an applicant for a federal job. The EEOC and federal agencies share responsibility for resolving federal applicant and employee complaints. One of the issues in the Macy case was the different procedural rights afforded to the claimant depending upon how the underlying charge was framed.
In 2014, then Attorney General Eric Holder issued a Memorandum indicating the DOJ would no longer assert that Title VII does not encompass protection against discrimination based on an individual’s transgender status. Relying in part on Price Waterhouse language stating that a plaintiff need only show that an employer relied on sex based considerations in coming to a decision, 490 U.S. at 241-242, the DOJ’s position moving forward would be that discrimination based on an individual’s gender identity is sex discrimination “because of … sex” under Title VII.
Internally, that meant a simplification in the approach to handling the administration of federal applicant and employee complaints. Externally, it signaled a shift as well. Shortly after the publication of the Holder Memorandum, the DOJ filed suit on behalf of Rachel Tudor, a Southeastern Oklahoma University English professor who was allegedly denied tenure and later fired because of a gender transition.
Attorney General Sessions rescinded the Obama-era Holder Memorandum, concluding that sex in the context of Title VII means biologically male or female and that an individual’s gender identity is not in and of itself a protected category under the Act.
In part, the Memorandum relies on the dissent in Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 362 (7th Cir. 2017)(en banc)(Sykes, J, dissenting)(citing dictionaries). The Hively decision, finalized in April of 2017, marked the first time a federal Court of Appeal held that Title VII prohibits discrimination based on sexual orientation. It set up a “split of authority” that may lead to resolution of the issue the U.S. Supreme Court.
The Memorandum also emphasizes that Congress has expressly prohibited discrimination based on gender identity in addition to other forms of discrimination under other statutes, such as the Hate Crimes Act. The Memorandum notes that transgender individuals are still entitled to protection under Title VII, but only in cases where sex stereotyping results in disparate treatment of men and women.
Rachel Tudor did not allege discrimination for failure to conform to stereotypically male norms. To the contrary, Tudor alleged discrimination based on hostility or dislike toward her as a non-conforming, transgender, woman. Tudor presented as male when hired and was not terminated until several years after publicly presenting as female.
The 10th Circuit, where Tudor’s claim arose, had concluded that an individual’s transgender status was not a protected category; however, it had, like the 6th Circuit, concluded that plaintiffs could move forward with Title VII claims based on failure to conform to gender stereotypes. See Ettsity v. Utah Transit Authority, 502 F.3d 1215, 1224 (10th Cir. 2007).
After the Sessions Memorandum was issued, the DOJ swiftly withdrew from Tudor’s case, but Tudor survived a motion for summary judgment and proceeded to trial. The result? A whopping $1.165 million jury verdict against the employer. It did not immediately appear that the university would appeal the decision. While one case does not a sea change make, it is worth noting that this case arose in a small town of 15,000 people in Oklahoma, not in a large urban center.
In short, neither the Memorandum nor this lower court decision resolves the host of thorny questions related to the future of discrimination claims by individuals whose gender nonconformity is at the heart of workplace conflict. If the U.S. Supreme Court does take up the split of authority over sexual orientation discrimination and Title VII, it may very well not answer all the questions employers have about sex.
More than 50 years have passed since sex was abruptly incorporated into the Title VII framework. Several more may very well pass before clarity on this particular issue emerges. In the meantime, prudent employers focus on policies and procedures that create productive, mission-focused environments.