On Transgender Employment Discrimination and Mr. Sessions’ Latest Commentary

I had a very light, easy day planned yesterday. I was out of the office to attend a continuing legal education workshop offered by my former firm. I planned to just sit and absorb generic information about the latest in labor and employment law, when a colleague announced at the end of one session that Mr. Sessions had just declared that Title VII does not protect transgender employees from discrimination. So, now I have some things to say.

What Does Title VII Say (on Its Face)?

By way of background, Title VII of the Civil Rights Act of 1964 (“Title VII”) proscribes two primary employment practices (and I am summarizing except for where you see quotation marks):

  1. Discriminating against an applicant or employee with respect to the terms and conditions of employment (e.g., hiring/refusal to hire; compensation; terms, conditions, or privileges of employment; termination) “because of such individual’s race, color, religion, sex, or national origin.”

  2. Limiting, segregating, or classifying applicants or employees in any way that would deprive them of employment opportunities or otherwise adversely affect their status as an employee “because of such individual’s race, color, religion, sex, or national origin.”

See 42 U.S.C. § 2000e-2(a). Title VII also proscribes retaliating against an employee for making a charge of discrimination or otherwise testifying, assisting with, or participating in enforcement proceedings. See 42 U.S.C. § 2000e-3(a). But we shan’t discuss retaliation, today. Just discrimination.

What Does Title VII Mean (according to Courts)?

Alright, so notice that the statute says “sex” and not “sexual orientation” or “gender identity.” On its face, that would suggest that Title VII only prohibits, for example, an employer from discriminating against a woman [in favor of a man]. But we no longer read the statute that narrowly because the Supreme Court has looked at this issue at least twice. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that Title VII’s prohibition against sex-based discrimination also prohibited discrimination based on gender stereotypes – as in, when the employee at issue, there, was told that she could not be promoted unless she walked, talked, and dressed “more femininely.” And then, in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Court held that same-sex harassment also constitutes prohibited sex discrimination under Title VII. The Supreme Court has not yet addressed transgender discrimination.

In addition, some Courts of Appeals have held that Title VII prohibits employment discrimination on the basis of gender identity, including status as a transgender person. See, e.g.Chavez v. Credit Nation Auto Sales, L.L.C., 2016 WL 158820 (11th Cir. Jan. 14, 2016) (reversing summary judgment in favor of the employer and remanding for retrial in the district court on whether gender bias was a motivating factor in the termination); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (applying Hopkins to hold that Title VII prohibited discrimination against transgender employees based on gender stereotyping). See also Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (9th Cir. 2000) (citing Title VII case law and holding that a transgender loan applicant stated a claim under the Equal Credit Opportunity Act by alleging that his loan was denied because he was biologically male but was dressed in traditionally female attire); Schwenck v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (citing Title VII case law and holding that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who failed to act like one”).

What Does Title VII Mean (according to the Attorney General)?

Statutory interpretation can be difficult because we are often looking at a constitutional provision or a statute that was drafted dozens and dozens of years ago in a completely different context, and are trying to figure out what it should mean now, in the current context. (For example, we’ll leave, for another day, the conversation about what guns looked like when the Second Amendment was drafted.) How do we decide what a law that was implemented in 1964 means in 2017?

Well, that’s generally the problem of the courts. But sometimes, an administrative agency decides that it has an opinion about how a seemingly-ambiguous statute should be interpreted. And sometimes we listen, and sometimes we don’t (and I’ll discuss that in a minute, below).

With respect to Title VII, on December 15, 2014, then-Attorney General Eric H. Holder wrote a memorandum addressing his office’s interpretation of Title VII:

“…I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status…The most straightforward reading of Title VII is that discrimination ‘because of…sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”

To reach that conclusion, Attorney General Holder reviewed the language of the statute, Supreme Court and Court of Appeals decisions (including those noted above), and administrative guidance, including the Office of Personnel Management’s 2011 guidance indicating that the “federal government’s policy of providing a workplace free of discrimination based on sex includes a prohibition against discrimination based on gender identity,” and the U.S. Equal Employment Opportunity Commission’s 2012 ruling that discrimination on the basis of gender identity is discrimination based on sex, and President Obama’s 2014 Executive Order prohibiting discrimination on the basis of gender identity in federal employment and government contracting (citations omitted). It is noteworthy that Attorney General Holder seemed to recognize the limitation of his memorandum as unable to “prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case”; that is, the purpose of the memorandum was to clarify the Department of Justice’s position on the statute, which would then be interpreted by the courts.

We should read Attorney General Sessions’ October 4, 2017 memorandum in the same way, whether he does or not. On the one hand, Attorney General Jefferson B. Sessions believes that Title VII only addresses discrimination in contexts where one gender is treated differently from another:

“Accordingly, 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 trangender status. Therefore…this memorandum…hereby withdraws the December 15, 2014, memorandum…”

On the other hand, he was able to reach that conclusion while acknowledging that certain types of discrimination “take account of the sex of employees” – which, by the way, sounds exactly like sex-based discrimination, to me – but do not impose different burdens on similarly situated members of each sex. I think it’s going to take a case where a transgender man and a transgender woman at the same employer are treated differently for this administration to even consider whether this position is absurd. But we shall see.

Do We Care What the Attorney General Thinks about What Title VII Means?

We all know how statutes get here, yes? The legislative branch legislates (makes laws) and then the judicial branch judges (interprets). The JUDICIAL BRANCH interprets. It decides what a law means and – really, just the Supreme Court – decides whether a law (or interpretation of a law) is constitutional. Generally. But every once in awhile, the executive branch – which is really just supposed to enforce the law that the legislative branch writes and the judicial branch interprets – decides that it has some feelings about the law; that is what the Attorneys General did in the memoranda we discussed above. And that’s totally fine, especially where the law is ambiguous. And it’s really fine because we have a line of jurisprudence that tells us what to do with the executive branch’s musings about what a law means. That line of cases addresses the idea of judicial deference.

Generally, to determine what a law means a court will look to the decisions of the courts above it, or to prior decisions from its own court, or to decisions of its peers; so, if the Seventh Circuit were interpreting a law, it would look to the Supreme Court, to prior decisions in the Seventh Circuit, and if necessary, to Court of Appeals decisions in other Circuits. When a court is trying to “determine what a law means,” it is really trying to figure out what Congress intended by what it drafted. And no, they can’t pick up the phone and ask. They just have to figure.

But judicial deference is what occurs when a court decides that another party – other than a court – knows what Congress meant better than the court does. In Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) – the source of our “Chevron doctrine” – the Supreme Court held that if Congress’ intent is not clear (i.e., if a statute is silent or ambiguous on a particular issue), the Court can look to the applicable agency’s interpretation of the statute and decide whether that interpretation is “based on a permissible construction of the statute.” Id. at 843. (When I say “applicable agency,” that just means the court is looking for statutory interpretation from the agency that is an expert on the statute; so, for example, it is not looking to the Environmental Protection Agency for its interpretation of Title VII, we are looking to the Department of Justice.)

So, what would the Supreme Court say about the latest memorandum? We don’t really know, yet, and may not know for awhile because I do not see any Title VII transgender discrimination cases on its docket for the 2017-2018 term. An educated guess, though? Well, I’m just assuming that Justices Breyer, Ginsburg, Kagan, and Sotomayor would conclude that Title VII did prohibit discrimination on the basis of gender identity. I’m assuming that Justice Thomas would not; and I’m hesitating, but I could probably conclude the same of Justices Alito, Roberts, and maybe Kennedy. But I am honestly not so sure about Justice Gorsuch. I do not necessarily think he would be swayed by the morality of the issue; rather, I suspect that his conclusions about the memorandum would stem from his disdain for the Chevron doctrine. I have seen this summarized in two other places, so I’m not going to attempt to recreate that, here (just go here and here). Suffice it to say that Justice Gorsuch has said that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In other words, the entire purpose of the system of checks and balances fundamental to our government is that each branch has its own responsibility with respect to each law – the legislature drafts, the judiciary interprets, and the executive branch enforces. And they don’t get to switch roles. And the judiciary (the Supreme Court) is the perfect body to interpret laws because it, with its lifetime appointments and such, is supposed to be the most insulated from the political fluctuations characteristic of the other two branches. So, deferring to the interpretation of a branch of government that is not supposed to be interpreting all is both inappropriate from a constitutional perspective and frightening from a moral perspective [especially under this administration].

What Do I Think?

Well, that doesn’t matter. Honestly. (But let me take this moment to say that I am speaking for myself and not for my employer on this blog…Although, my employer will speak about this shortly, and I do not believe our views will differ.)

The most important thing for me to say is that even if you find no comfort in my explanation about how much to ignore the latest memorandum, you, as an employer, can decide to offer more protection than the law does. If the Supreme Court pronounced tomorrow that Title VII does not prohibit gender identity discrimination or if Congress amended the statute to specifically exclude protection on the basis of gender identity to resolve any statutory ambiguity, you could prohibit it by policy.

You should prohibit it by policy. In my opinion, the core of all the anti-discrimination laws is that the way we treat an employee should be based on their conduct and qualifications, and not on their identity. In other words, it is absolutely appropriate to discipline a person for their poor performance or misconduct; identifying as a gender different from that as which you were born is not misconduct. It may be inappropriate to dress provocatively (e.g., in a scantily-clad manner); it is not inappropriately provocative to dress in clothing stereotypically worn by the gender as which you identify and not the gender as which you were born.

Just my two cents, mind you.

At any rate, I’ll keep you posted if we hear anything else about this area of the law. This is super important.


Have You Ever Heard of the Age Discrimination in Employment Act?

I didn’t want to make you wait too much longer for this one – last week, I mentioned the Age Discrimination Act and I am sure that several of you scowled because you’re used to hearing about the Age Discrimination in Employment Act (29 U.S.C. § 621).

  • Who does it apply to?: All employers who have “engaged in an industry affecting commerce” (read: pretty much all employers) and who have 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Cliffnotes version: if you are an employer with at least 20 employees, this probably applies to you.
  • Who does it protect?: All applicants and employees over age 40.
  • What does it do?: It prohibits employers from making decisions that affect the terms and conditions of employment for an applicant or employee (e.g., compensation, promotion, training, etc.) based solely on the person’s age; however, nothing in the statute prohibits an employer from offering a voluntary retirement program to an employee over age 65 who held a bona fide executive or high policy-making position.
  • Who enforces it?: U.S. Equal Employment Opportunity Commission
  • Reporting deadlines: None.
  • Document retention requirements: None.

The “based solely on” part of the prohibition is important. At one time, an employee could successfully prove age discrimination by establishing that their age was even one of several factors the employer considered in changing their terms and conditions of employment (i.e., that the employer had a “mixed motive”). After the Supreme Court’s decision in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009), an employee could only prevail by establishing that age was the “but-for” cause (i.e., the sole reason) for the decision.

At some point, we will discuss the idea of obtaining a waiver and release of claims from an applicant/employee. A waiver and release generally appears in a settlement agreement or separation agreement with an applicant/employee, and is a very long paragraph that lists statutes under which an employee could assert claims. Well, there is a special procedure that an employer has to follow when asking an applicant/employee to release age discrimination claims, and those procedures appear in the Older Workers Benefit Protection Act (“OWBPA”). That is just a quick preview, but I promise, we will talk about it another day…

Student Accommodations and Academic Integrity

Student accommodations can be a very difficult area for professors and administrators, who struggle with balancing a genuine concern for individual student needs with the importance of maintaining the integrity of a particular examination.

I mean, let me be clear – accommodations can be tricky for everyone, whether we are talking about an employee or a student. There is a very human instinct to give the requesting person exactly what they want and that instinct can be very dangerous, particularly because it is not easily maintained. In this area, consistency is key. That means being consistent with that person and also being consistent in the types of accommodations that are offered to similarly-situated people. Let me give you an example so you see what I mean:

Professor Smith has a student – Amy Adams – in her class who has been approved for double time on her exams, which means she is allowed to use 4 hours instead of the normal 2 hours. Professor Smith decides not to time Amy’s test, and Amy actually ends up using 6 hours to take the exam. Brad Smith is in the same class, but takes the makeup exam on a different day than Amy.  Brad has also been approved for double time on his exams, which means he is allowed to use 4 hours instead of the normal 2 hours. During the exam, Brad asks Professor Smith if he can have an additional hour (for a total of 5 hours) to take the exam. Professor Smith has a meeting scheduled and cannot sit for 5 hours, so she refuses.

Here, there was nothing necessarily nefarious about Professor Smith’s refusal to give Brad an additional hour – it appears to have been related to the professor’s schedule and not to some illegal animus towards Brad. However, for all intents and purposes, Amy and Brad were the same (i.e., they were in the same class, with the same teacher, and with the same approved accommodations) and should have been treated the same. By doing something that she thought was helpful for Amy, Professor Smith created a precedent for accommodations in her class. Let’s add to the scenario that Professor Smith and Amy are both Caucasian and that Brad is Black – would that add an additional complication to the disparate treatment?

Now, let’s add academic integrity to the mix. This time, we are not just talking about the amount of time a student is given to complete an examination, but also the conditions under which the student is taking the test. How early in the day can the student be required to take the test? What if the student needs to take the test at a different time or on a different day from the other students – must the student take the exact same test? Can the student be given a different test?

Unfortunately, like all things in the world of labor and employment law, there is no bright line rule here. The only blanket rule I will give is this: all tests should be timed. Unless a student’s doctor has approved (and the institution has a practice of giving) truly unlimited time for a test, you are not doing anyone a favor (as we saw in the example above with Amy and Brad) by giving unlimited time to a student on a test, unless you plan on doing that with all other students going forward. The important thing is that the accommodated student should not be penalized for needing an accommodation. If the student needs to take the test at a different time or on a different day from the rest of the class and the professor elects to create a different exam (to reduce the likelihood of cheating), then the accommodated student’s test should not be more difficult than the other tests, for example. Aside from that, as with everything else, consistency and reasonableness are key.

This is a tricky one – have you had to deal with this issue? How are you handling it?

7th Circuit Holds that Title VII Prohibits Discrimination on the Basis of Sexual Orientation

Earlier this month, the Seventh Circuit Court of Appeals decided Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), a case in which an openly-lesbian part-time adjunct professor alleged that she was being blocked from full-time employment with Ivy Tech because of her sexual orientation in violation of Title VII.

On its face, the statute does not include sexual orientation, but prohibits only discrimination on the basis of “race, color, religion, sex, or national origin.” See e.g. 42 U.S.C. § 2000e–2(a). Thus, the district court granted Ivy Tech’s motion to dismiss Hively’s suit because sexual orientation is not a protected class under Title VII.

The Seventh Circuit acknowledged that it was not within the scope of its power to amend Title VII to add a new protected category. However, this case did call the Court to decide what it meant to discriminate on the basis of sex, and whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. To do so, the Court looked to Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), where the Court held that although Title VII was not initially enacted to address the evil of male-on-male sexual harassment, it was appropriate to apply the statute’s protection to “reasonably comparable evils” such as that. Id. at 79-80. The Court went on to conclude that it “would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” Hively, at 20. Thus, protection from discrimination on the basis of sexual orientation does not require the creation of a new category; it is a form of sex discrimination. 

If you have been following the ever-expanding area of sexual orientation/gender identity law, a question has already popped into your head, and the Court anticipated that and answered: in this case, it did not consider whether gender discrimination is a subset of sex discrimination, and has left that question for another time. As an aside, the Court noted that many courts are currently using the terms “gender” and “sex” synonymously. These terms are not the same, however, and I suspect that will become an issue in a new case in the not-too-distant future. “Sex” typically refers to the biological distinctions (e.g., genitalia); “gender” refers the way in which people view themselves. That is, as an example, a person with a penis may be male in sex, but may identify as being a woman in gender.

Tell me about your policies – were you already including sexual orientation in the categories of people protected under your EEO/anti-discrimination policies?



Employment Law Predictions for 2017

Whatever your political views, it is undeniable that the last several weeks have been fascinating, to say the least. The most interesting thing about labor and employment law is that any change can affect our clients because any change can impact employees.

That said, there will likely be a number of changes to employment laws specifically. Given this President’s ideologies, I suspect that he will attempt – through Executive Order – to eliminate a number of protected categories (e.g., sexual orientation) such that people who previously could not be discriminated against because of their membership in those categories will now be exposed anew. We can also expect that he will do all he can to eliminate same sex couples’ ability to marry, or at the very least, to limit their access to the same rights that male-female couples enjoy (e.g., rights relating to taxes, family and medical leave, etc.). And, one can only imagine the changes that would occur if the Senate confirms a Secretary of Labor with no government experience who is the former CEO of CKE Restaurants, Inc. (parent to Hardee’s and Carl’s Jr.).

So far, however, the only action the President has taken that relates on its face to employment have been his January 23, 2017 Executive Order freezing hiring across the Executive Branch, and his January 20, 2017 Executive Order encouraging the agencies administering the Affordable Care Act to grant liberally all exemptions to the implementation of the Act.

Although it is quite clear that the President intends to do all he can unilaterally via Executive Order, we can also expect that lawyers and judges will do all they can to apply the necessary checks and balances on that power, as we have seen with the recent issues surrounding the injunction on the enforcement of an executive order that attempted to apply a travel ban targeting Muslims from specific international states. It is nearly impossible to watch this impartially, but I will do my best to report and analyze these issues as neutrally as possible…Stay tuned…

In the meantime, let me know – what issues are you keeping you eye on the most?