U.S. Capital

DOJ Argues Employers Can Discriminate Against Transgender Workers

Jan 30, 2020

Los Angeles, CA (Law Firm Newswire) January 30, 2020 – The Justice Department in October 2018, argued to the United States Supreme Court that it does not violate federal law if employers discriminate against employees based upon their gender identity. The DOJ’s position was proffered during oral arguments in a case out of the U.S. Court of Appeals for the Sixth Circuit where a Michigan funeral home fired an employee because the employee was transgender. Solicitor General Noel Francisco argued
in front of the Justices that a civil rights law banning workplace sex discrimination does not cover transgender bias.

The EEOC sued the funeral home on behalf of the fired employee and won. The case was appealed to the Sixth Circuit, who held that the sex discrimination laws does protect transgender people from indiscriminate firing and harassment based upon their gender identity. The DOJ’s position has come on the heels of a report that the Department of Health and Human Services plans to define “gender” as one’s sex upon birth.

The American Civil Liberties Union has indicated that, since the government will not fight on behalf of the transgender employee, then it will represent the employee at the Supreme Court.
This case is one of three cases that the Court is considering regarding the issue of whether sexual orientation bias is actually a form of sex discrimination under Title VII of the 1964 Civil Rights Act.

The Sixth Circuit became the first circuit appellate court to rule that Title VII protected transgender people from discrimination based upon their sexual orientation. “It is analytically
impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” Judge Karen Nelson Moore wrote for
the Sixth Circuit. The funeral home argued that the employee violated a company policy that required employees to dress in a way that corresponded to their sex at birth. The Sixth Circuit
rejected that argument as well as the argument that the funeral home owner’s religious freedom was being violated due to his Christian beliefs.

The DOJ was joined by 16 state attorneys general in arguing against the Sixth Circuit’s decision. Their argument is that Congress did not intend to protect lesbian, gay, bisexual or transgender employees from gender bias and discrimination. However, 20 states and Washington, D.C. have their own protections against employment discrimination based upon gender identity.

To learn about discrimination in the workplace, please visit https://www.strongadvocates.com/