By: Amy Epstein Gluck

By now, most people (who read or watch the news, anyway) know that the U.S. Supreme Court (SCOTUS) just vacated a lower court ruling in a transgender student’s favor and sent the case back to the 4th U.S. Circuit Court of Appeals. The decision followed the Department of Justice’s (DOJ’s) and Department of Education’s (DOE’s) Feb. 22 withdrawal of guidance this year that schools should let transgender students use bathrooms that match their gender identity.

The case is Gloucester County School Board v. G.G., from the 4th Circuit, which encompasses Virginia, Maryland, South Carolina, and North Carolina.

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The decision to vacate the ruling and remand the case back down to the Circuit Court dealt a blow to civil rights advocates, and it was certainly a blow to the EEOC, the federal agency that enforces the anti-discrimination employment statute, Title VII of the Civil Rights Act of 1964.

 

Why? What do a student’s rights, or lack thereof, to choose which bathroom to visit have to do with employment?

I could tell you, but the HR folks at SHRM explained it perfectly. In his article yesterday, Allen Smith of SHRM explained that “The circuit court’s forthcoming ruling should provide a better idea of whether the Title IX prohibition on sex discrimination includes discrimination based on gender identity. And its holding might influence courts determining whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on gender identity.”

As I wrote about here, Title VII prohibits discrimination on the basis of sex. The EEOC argues that discrimination based on a person’s gender identity or sexual orientation IS inherently based on sex.

Ah, now we see. Or do we? Because it all turns, as we’ve seen last year, on whether lower courts agree with the EEOC’s definition of “sex discrimination.” Sounds simple, right?

The EEOC’s Position on Gender Identity As “Sex” Discrimination

Hardly. In his article, Smith explained the viewpoints of several attorneys he spoke with and quoted, “The Supreme Court’s vacating of the G.G. case simply delays a Supreme Court ruling on whether the word ‘sex’ in Title IX—and in Title VII—should be read to include gender identity, Van der Veer Holt said. ‘The Title VII meaning of ‘sex’ is presently being considered by the Second, Fifth, Seventh and 11th circuits.’”

The EEOC interprets “sex,” as used in Title VII, to include discrimination against lesbian, gay, bisexual, and transgender rights because it is discrimination based on or because of “sex.” In fact, the EEOC is focusing on LGBT rights in its 2017-2020 Strategic Enforcement Plan. (Click here if you don’t know what the heck a strategic enforcement plan is.)

The question of whether unlawful discrimination or harassment is actual sex discrimination remains in the hands of the circuit courts.

Employer Takeaway:

Confused by SCOTUS’s unwillingness to simplify matters and rule one way or another? No need. As an employer, consider erasing the ambiguity caused by SCOTUS’s delay, and treat all of your employees equally and fairly regardless of which bathroom they prefer. It can’t be easy to transition into a whole new gender or to tell coworkers you are biologically a man (named Joe at birth) when they’ve always seen you and treated you as a woman and called you Jessica!

 

If that’s not reason enough, consider the data—as I wrote about here, supportive, inclusive LGBT policies foster a more cohesive work environment and translate to less attrition, augmentation of a company’s overall performance, and increased profitability.

Or, employers might just remember that the EEOC, with its interpretation of “sex discrimination” under Title VII, is the first stop for an employee or former employee who takes legal action against discrimination, and that agency will not look too kindly on an employer who implicitly or explicitly tolerates or fails to correct this type of discrimination against LGBT people.

Don’t say you weren’t warned!