R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Chief Justice Roberts (4:04): So if the objection of the transgender individual is that I want to use a bathroom consistent with my gender identity, rather than biological sex, do you analyze it as -- the affecting based on the transgender status or do you analyze it on the basis of biological sex?

Joshua Sealy-Harrington: While your question suggests a tidy dichotomy between “sex” and “transgender status,” they interrelate. This relationship can be most easily illustrated by comparing this case with Price Waterhouse.

A majority of the Court in Price Waterhouse recognized that discrimination “because of” sex includes not only discrimination against an individual from a sex-based group (e.g., women), but relatedly, discrimination against an individual who is perceived to deviate from expectations linked to that sex-based group (e.g., masculine women). This notion of deviating from sex expectations applies to both Ms. Hopkins and Ms. Stephens. Ms. Hopkins was discriminated against because her employer considered her too masculine, whereas Ms. Stephens was discriminated against because her employer considered her too feminine. Thus, Price Waterhouse is dispositive: both constitute discrimination “because of” sex, or more precisely, discrimination “because of” deviation from sex expectations.

You’re asking whether the issue here is “sex” or “transgender status,” just as the Court in Price Waterhouse could have asked whether the issue there was “sex” or “compliance with gender roles.” But it didn’t. Rather, it recognized that discrimination “because of” sex includes discrimination linked to sex. Ms. Stephens is the victim of simply another form of such sex-linked discrimination.

Justice Sotomayor (7:57): But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms. So the hard question is how do we deal with that? . . . And what in the law will guide judges in balancing those things? That’s really what I think the question is about.

Joshua Sealy-Harrington: There are two responses to your question, which asks, essentially: when adjudicating sex discrimination, how do we balance one group’s interest in benefitting from sex discrimination against another group’s interest in being free from such discrimination?

The first response is that this case does not require your honors to perform such a balance. This case is about whether the respondent may terminate Ms. Stephens simply for being transgender. If Ms. Stephens had been assigned female at birth, then her gender identity as a woman would have been completely unobjectionable to Harris Homes. That is sex discrimination simpliciter.

The second response is that one group’s interest in benefiting from sex discrimination does not negate another group’s interest in being free from such discrimination. In fact, one’s interest in benefitting from sex discrimination—and the manifestation of that interest into discriminatory actions—is precisely what Title VII sought to eradicate.

Consider the text of Title VII. It prohibits employment discrimination “because of” sex, full stop. There is no exception for cases in which other employees support sex discrimination. Rather, the only exception is for BFOQ, which Harris Homes never proved, nor even asserted, in this case.

Likewise, consider the precedents. In Price Waterhouse v. Hopkins, the published opinions evidence significant disagreement about the correct analytical framework governing sex discrimination. There was, by contrast, total consensus about the irrelevance of the interest in benefitting from sex discrimination to that framework.

Specifically, this Court in Price Waterhouse was unanimous in concluding that a finding of sex discrimination turns exclusively on the relationship between the employer’s decision and the employee’s sex, nothing more. Justice Brennan’s plurality opinion said that an employer makes a decision “because of” sex where it relies “upon sex-based considerations” (pg. 242); the concurring opinions of Justice White (pg. 259) and Justice O’Connor (pg. 278) both said that an employer makes a decision “because of” sex where sex is a “substantial factor” in the decision; and Justice Kennedy’s dissenting opinion suggested that an employer makes a decision “because of” sex where its decision would have been different “but for” the employee’s sex (pg. 282). The assertion of other interests—e.g., other employees supporting the impugned discrimination—plays no role in any of these tests. Indeed, many other employees in Price Waterhouse—e.g., the partners who negatively reviewed Ms. Hopkins—supported the employer’s decision not to promote her to partner. Yet that decision, despite its popularity among the partners, still amounted to sex discrimination because it impermissibly rested on sex. In a society that continues to grapple with sex discrimination, visiting adverse employment consequences upon women like Ms. Hopkins or Ms. Stephens for being too masculine or too feminine, may often be popular. Yet Title VII forbids such employment decisions, both despite their popularity and sometimes because of it.

The interests of other women in comfort or a sense of safety, if legally relevant to such sex discrimination claims, would come up under the BFOQ exception. As noted, however, Harris Homes never proved or even advanced the argument that this exception applies here. In any event, in the context of such sex discrimination claims, other women’s comfort and sense of safety cannot meet the BFOQ threshold—nor should it. As this Court held in Dothard v. Rawlinson, the BFOQ exception is “extremely narrow”, cannot rely on “stereotyped characterizations of the sexes” (as Harris Homes does here), and only applies where “the essence of the business operation would be undermined” (pg. 2729). To subordinate Ms. Stephen’s interest in being free from sex discrimination to her colleagues’ interest in benefitting from that discrimination would mean that employee prejudice can legally validate employer discrimination. In Diaz, the Fifth Circuit astutely captured how the logic of deferring to customer preference to justify discrimination would, contrary to Title VII’s apparent scheme, “permit the exception to swallow the rule” (pg. 387). In its words: “it would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome” (pg. 389). Whether prejudice comes from customers or co-workers, should not matter—the BFOQ inquiry considers operational necessity, not popularity, especially where that popularity itself reflects the prejudice Title VII was designed to counteract.

Sex was not simply one influence on the decision to terminate Ms. Stephens; it was not simply a “substantial factor”, or simply a “but-for” cause for the decision; it was the sole basis. Based on Price Waterhouse, impermissible sex discrimination, thus, could not be clearer.