Epstein Becker Green’s Annual Briefing Featured in “EEOC Doubles Down on Transgender Protections as Conflict Intensifies”

HR Dive

Epstein Becker Green's Annual Workforce Management Briefing was featured in HR Dive, in “EEOC Doubles Down on Transgender Protections as Conflict Intensifies,” by Ryan Golden.

Following is an excerpt:

The positions of the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) on whether Title VII of the Civil Rights Act protects employees from discrimination based on transgender status are ‘contrary’ to each other, EEOC acting chair Victoria Lipnic said Thursday during Epstein Becker Green’s Workforce Management Briefing in New York.

On Wednesday, DOJ filed a brief that weighed in on a case — Harris Funeral Homes v. EEOC — that is pending before the U.S. Supreme Court. In that case, the 6th U.S. Circuit Court of Appeals found an employee had been fired because of her failure to conform to sex stereotypes as well as her transgender status, amounting to a violation of Title VII’s prohibition of discrimination on the basis of sex. In its brief, DOJ argued the 6th Circuit “erred” in its decision, saying in part that “the ordinary meaning of ‘sex’ does not refer to gender identity.” …

The split between EEOC and DOJ is closely related to the ideological difference between the two entities over employment discrimination on the basis of sexual orientation. Federal appeals courts also remain split on the issue, and the Supreme Court has yet to take up a case that would clarify the matter for employers.

More to the point, DOJ’s position in the Harris case has to do with whether the issue of discrimination on the basis of gender identity, as it pertains to Title VII, constitutes a “deep circuit split” among federal courts, Lipnic said. If the Supreme Court were to deny certoriari to Zarda and/or Bostock, she added, DOJ is arguing the court should do the same in the Harris case “by and large because there is not the kind of deep circuit split in the courts on the gender identity issues as there is on the sexual orientation issue.”