hunter of justice

EEOC rules that Title VII covers gender identity discrimination

The EEOC has issued a decision holding that it will consider gender identity discrimination to be a form of sex discrimination prohibited by Title VII. The ruling comes in Macy v. Holder, a case brought by a transwoman against an agency within the Department of Justice. The EEOC decision cites precedent established in a series of federal court decisions that have come to the same conclusion.

The decision in the Macy case covers only gender identity discrimination and does not include any discussion of whether sexual orientation discrimination is also covered under Title VII.

The ruling clarifies that EEOC offices around the country will accept and process claims of gender identity discrimination, a practice that has been spotty in the past.

From MetroWeekly:

An employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964, according to an opinion issued on April 20 by the Equal Employment Opportunity Commission (EEOC). The opinion, experts say, could dramatically alter the legal landscape for transgender workers across the nation.

The opinion came in a decision delivered on Monday, April 23, to lawyers for Mia Macy, a transgender woman who claims she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition. It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.

In the decision, the EEOC states, ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....''

Supreme Court struggles with how to reconcile "ministerial exception" with secular jurisdiction of civil rights

Mucho commentary about reactions from the Justices to the arguments this morning in the Hosanna-Tabor case, a dispute with potentially major ramifications in cases involving religious defendants seeking exemptions from enforcement of anti-discrimination laws. Full transcript is here. From HuffPo:

...[T]he Court is considering for the first time the scope of the "ministerial exception" -- a doctrine developed by the lower courts over the past 40 years. Under the ministerial exception, the federal courts decline to hear certain discrimination lawsuits brought by employees of religious organizations. The exception is meant to preserve the First Amendment wall between church and state.

In 2000, Hosanna-Tabor, a Lutheran grade school in Michigan, made Cheryl Perich a "commissioned minister" so that she could be promoted from a year-to-year contract employee to a "called" teacher deemed religiously fit for a permanent position at the school. As a called teacher, Perich taught a variety of secular subjects as well as a religion class. In 2004, she went on disability leave for what was soon diagnosed as narcolepsy. Per its policy, the school asked her to resign once her absence exceeded six months, but she refused. Rather than submit to the school's request that her complaint be handled within the Lutheran church's own adjudicative process, Perich threatened to file suit with the EEOC under the Americans with Disabilities Act. In response, the Hosanna-Tabor congregation rescinded Perich's "call," which drove her to follow through on her threat to file with the EEOC.

On Wednesday morning, Douglas Laycock, a law professor at the University of Virginia who represented Hosanna-Tabor..., began by proclaiming that "the churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

Justice Sonia Sotomayor didn't buy Laycock's aphorism. "We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children. Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable," asked Sotomayor. "And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires [by] reporting it?"...

Turning from hypotheticals to the facts of the case, Justice Anthony Kennedy, who is known for his robust view of the courts' role, expressed astonishment that Perich "was fired for simply asking for a hearing." And Laycock's response -- that Perich could get a hearing from the church for her claims against the church -- hardly heartened Kennedy. "You're asking for an exemption so that these issues can't even be tried," said the justice...

The paradigmatic ministerial exception for the Roman Catholic Church against sexual discrimination lawsuits brought by would-be female priests loomed large during oral argument. Scalia, Breyer, Alito and Roberts all took turns pressing Kruger and Perich's lawyer, former Acting Solicitor General Walter Dellinger, on why a Lutheran tenet commanding internal dispute resolution did not deserve the same respect as Catholicism's male-only priesthood. The lawyers could not answer to the justices' satisfaction.

During Laycock's argument, Justice Ruth Bader Ginsburg did have a hard time finding consistency in Hosanna-Tabor's policy on employee complaints. In his written briefs, Laycock had said that an employee could bring some suits, such as a complaint about unsafe working conditions, against Hosanna-Tabor without running into the ministerial exception. "I don't follow why" such a claim "would not fall under the same ban on keeping disputes in-house?" said Ginsburg.

From Lyle Denniston at SCOTUSblog:

...University of Virginia law professor Laycock, perhaps the country’s leading academic expert on the Constitution’s religion clauses, was there to argue for the church that anyone holding “an ecclesiastical office” and teaching the faith, among other “important religious functions,” was a “minister” and could not sue under anti-discrimination law.  But, while he faced criticism from the other side that his rule was too categorical, he had significant difficulty keeping it within a well-defined compass.  At one point, for example (and to the seeming astonishment of Justice Scalia), he suggested that the definition of “minister” was a legal issue, not a religious question. So, Scalia said, “you would allow the government courts to probe behind the minister’s suggestion that this person is a minister?”

As members of the Court, especially Justice Sonia Sotomayor and Justice Anthony M. Kennedy, expressed some alarm at shutting off government inquiries into claims of retaliation for pursing one’s rights, Laycock began making concessions, suggesting, for example, that “there has to be some kind of qualitative threshold” for invoking the “ministerial exception.”  And, he said, “there will be line-drawing problems” — supposedly, something that a court would have to probe in order to know whether the exception applied.

He also said that, if the claim of the “ministerial exception” was only a “sham,” the courts could go ahead with the case.  But, since he had resisted allowing a case to proceed if the claim of the exception was merely “a pretext” for a biased employment action, Scalia wondered whether there was a difference between a sham and a pretext.   Justice Samuel A. Alito, Jr., did give Laycock some support on his resistance to judicial inquiry into a “pretext” claim against the invocation of the “ministerial exception.”  In doing so, Alito began the exploration of whether church-state separation required a hands-off policy for the doctrines of one faith, but not of another.

After a series of seeming concessions by Laycock, Justice Kennedy suggested that they embraced this very case.  Noting that the professor would allow judicial inquiry into the number of secular functions a parochial teacher had, Kennedy said “that’s what this case is.  But you don’t even want that issue to be tried.  You say that issue can’t even be explored.”  It was apparent that several members of the Court were growing frustrated with where Laycock’s argument was actually going.   They seemed to be hoping for some simplicity, but they were not getting it in any significant measure...

More after the jump -->

EEOC asserts jurisdiction over anti-gay harassment claim

In Veretto v. Donohue, 2011 WL 2663401, the Office of Federal Operations (OFO) of the EEOC reinstated a discrimination complaint filed by a gay male employee of the Postal Service who works in Connecticut. Veretto alleged that a co-worker ("CW1") harassed him after reading in a local newspaper that Veretto was about to marry his partner, and alleged that had he been a woman engaged to marry a man, the harassment would not have occurred.

The Postal Service ("the Agency") dismissed the complaint on the ground that sexual orientation discrimination is not prohibited by Title VII. OFO reversed the dismissal, ruling that the EEOC has jurisdiction under a sexual stereotyping theory to investigate whether the claim has merit.

The key text in the opinion states:

The Agency is correct that the Title VII's prohibition of discrimination does not include sexual preference or orientation as a basis. [citations omitted]

Title VII does, however, prohibit sex stereotyping discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (finding that an employer's decision to withdraw a job offer from a transsexual applicant constituted sex stereotyping discrimination in violation of Title VII)... In Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission made clear that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. In this case, we find that Complainant has alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail. He alleges that he was subjected to a hostile work environment because CW1 learned that he was marrying a man. He has essentially argued that CW1 was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when Complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper. In other words, Complainant alleges that CW1's actions were motivated by his attitudes about stereotypical gender roles in marriage. Complainant further alleges that the Agency should be held liable for CW1's actions because it failed to take appropriate corrective action once the harassment was reported to management. These allegations are sufficient to state a viable hostile work environment claim under Title VII. 

This decision illustrates that, although no court has found that sexual orientation discrimination is covered under sex discrimination, a gay person who is subjected to harassment or other sexual stereotyping is as entitled as anyone else to bring a claim under Title VII.