Thirty years ago, inÂ Price Waterhouse v. Hopkins
, the Supreme Court held that âsex stereotypingâ is forbidden by a federal law banning employment discrimination. âWe are beyond the day,â Justice William Brennan wrote in the courtâs plurality opinion, âwhen an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.â
Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.
The Trump Justice Departmentâs position inÂ R.G. & G.R. Harris Funeral Homes v. EEOCÂ wouldnât nukeÂ Price WaterhouseÂ entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.
It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administrationâs position inÂ HarrisÂ Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back â even if doing so will legalize a fair amount of discrimination against cis women in the process.
âBecause of . . . sexâ
Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims toÂ âbelieve that the Bible teaches that a personâs sex is an immutable God-given gift.â
In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not âdischarge any individualâŚbecause of such individualâs race, color, religion, sex, or national origin.â
Thus, as a textual matter,Â Stephens should have an easy case. Title VIIâs language is capacious. It forbids any discrimination âbecause ofâ an employeeâs âsexâ (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, âit isÂ analytically impossibleÂ to fire an employee based on that employeeâs status as a transgender person without being motivated, at least in part, by the employeeâs sex.â
The entire reason why Stephens was fired is that her employer believes that she is a man, and that men must dress and act a certain way. Thatâs discrimination because of sex.
Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping â or, at least, she does under those cases as they currently stand.
Price WaterhouseÂ is a bit of a confusing decision because it did not produce a single majority opinion. Nevertheless, a majority of the Supreme Court clearly agreed that sex stereotyping is not allowed. Brennan concluded, on behalf of himself and three other justices, that âCongress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’â
Meanwhile, Justice Sandra Day OâConnor said that the plaintiff inÂ Price Waterhousecould proceed with her lawsuit because she proved that âstereotypical attitudes towards women [played] a significant, though unquantifiable, roleâ in her employerâs decision not to make her a partner. So Brennanâs opinion plus OâConnorâs opinion equals five votes against sex stereotyping in the workplace.
Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that âTitle VII creates no independent cause of action for sex stereotyping.â Though Kennedy conceded that âevidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,â his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.
Which brings us to the Trump administrationâs argument in isÂ Harris Funeral Homesbrief:
Stephensâs and the Sixth Circuitâs sex-stereotyping argument rests on the incorrect premise thatÂ Price WaterhouseÂ construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.
See the problem here? This passage does not describe the majorityâs view inÂ Price WaterhouseÂ at all. To the contrary, itâs the exact same view that Justice Kennedy took in dissent.
Having confused the majorityâs view with a dissent, the Trump administration then claims that much ofÂ Price WaterhouseÂ must be rolled back.
Indeed, itâs notable that the Trump administration is only able to cite one lower court opinion that supports its novel view ofÂ Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho â a Trump judge known for writing aggressive opinions thatÂ read more like Fox News editorialsÂ than like judicial decisions. The Ho opinion that Trumpâs Justice Department relies uponÂ does not cite any other caseÂ that shares his reading ofÂ Price Waterhouse.
Price Waterhouse, moreover, is hardly an obscure case. It is a seminal decision that recognized an entire branch of American civil rights law. According to the legal research database Lexis Advance, 6,265 court decisions citeÂ Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasnât able to find a single one that supports his reading ofÂ Price WaterhouseÂ is compelling evidence that Ho is wrong.
Itâs unclear just how drastically the Trump administrationâs reading ofÂ Price Waterhousewould roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. UnlessÂ Price WaterhouseÂ is read narrowly, the Trump Justice Department warns, âaÂ dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.â
Perhaps. A prototypical example of sex stereotyping is declaring that men must look a certain way and women must look another way (although some lower courts permit gender-specific dress codes so long as they are âequally burdensomeâ on men and women). At the very least, the Trump administration appears eager to strip all American workers of their right to keep their job even if they donât tailor their appearance to their employerâs gender norms.
One lesson ofÂ Harris Funeral Homes, in other words, is likely to be that the fate of various civil rights plaintiffs are unavoidably linked. Denying trans workers the right to be free of employment discrimination means rolling back doctrines that protect other workers as well.
If the Supreme Court joins the Trump administrationâs crusade against trans rights, the consequences will spill over to all workers.
This article was originally published by Ian Millhiser on August 20, 2019. Reprinted with permission.Â
About the Author:Â Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.