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The Employer Handbook Blog
Vacation Thread: DOJ says that transgender discrimination under Title VII is perfectly legal
By Ivan Curra, CC BY-SA 3.0, Link
(Not pictured: Eric Meyer; probably off grabbing a Dole Whip (adult version) and a turkey leg).
Folks, the blog posts may not be as fast and furious (i.e., daily) as usual this week. That’s because, yes, I am vacationing with the family in Disney World.
If any burglar is reading this, well, “NERD!”
But, I’ll try to pump out a few posts between Space Mountain and the Country Bear Jamboree.
For example, here is the brief that the U.S. Department of Justice filed with the Supreme Court last week, in which the DOJ argued that employers may discriminate against someone at work because they are transgender without violating Title VII of the Civil Rights Act of the 1964.
If you look on the docket in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, it says that the U.S. Equal Employment Opportunity Commission has filed this brief. But, no, this comes from the DOJ.
As you may be able to tell from the case caption, this case is on appeal. At the Sixth Circuit Court of Appeals, from which this appeal comes, the EEOC argued that the prohibition in Title VII against discrimination based on “sex” includes discrimination based on “gender identity.” The Sixth Circuit agreed.
I don’t know whether the EEOC will file another brief with the Supreme Court. Notwithstanding, there is a slew of amicus curiae (that’s Latin for ‘friends of the court’) briefs already filed with the Supreme Court in support of the outcome in the Sixth Circuit. Oral argument has not yet been scheduled.
Presumably, in 2020, the Court will decide this case and two other related cases:
This issue in Zarda and Bostock is whether Title VII prohibits discrimination based on sexual orientation.
Even if the Supreme Court concludes that Title VII permits LGBT discrimination, many states and localities have already passed laws banning these types of discrimination. These laws would control. Plus, most businesses have already adopted policies and procedures banning these forms of discrimination.