R.G. & G.R. Harris Funeral Home v. EEOC, has drawn some attention because the Department of Justice (“DOJ”) once again has voiced a position contrary to the Equal Employment Opportunity Commission (“EEOC”). In R.G. & G.R. Harris Funeral Home v. EEOC, the Sixth Circuit found that discrimination against employees, either because of their failure to conform to sex stereotypes, or their transgender or transitioning status, violates Title VII. In this case, Aimee Stephens was fired after notifying the funeral home that she would be transitioning to, and presenting herself as, female following a scheduled vacation. The funeral home petitioned the U.S. Supreme Court to review the Sixth Circuit’s decision, although the Court has not yet accepted certiorari.
On October 24, 2018, the DOJ filed a brief in opposition of the Sixth Circuit’s ruling, arguing Title VII’s prohibition against sex discrimination does not apply to discrimination based on gender identity. The DOJ represents the interests of the United States and has the sole authority to represent the government before the high court argued that sex stereotyping is only illegal when it treats men and women differently. The DOJ relied on the definition of “sex” as defined by a 1958 edition of the Webster’s Dictionary, which does not refer to gender identity. The DOJ also contended enforcement of a sex-specific dress code by itself does not constitute discrimination, although this question is not before the Supreme Court.
For years, the Justice Department’s Civil Right Department and the EEOC have operated under a Memorandum of Understanding (MOU) regarding the application of civil rights laws. On December 21, 2018 the EEOC and Justice Department signed another MOU, which sought to enhance the effectiveness of the two agencies and eliminate duplication and inconsistency in the enforcement of the federal employment discrimination laws. However, the MOU was silent regarding the contrary positions of the government on sex discrimination.
It is noteworthy the Supreme Court has also been asked to review Altitude Express, Inc. v. Zarda and Bostock v. Clayton Cnty., which present a related question on whether sexual orientation discrimination receives coverage under Title VII. The DOJ, which argued against the EEOC’s position during oral arguments in Zarda last year, has asked the Supreme Court not to rule on the petition for certiorari in the funeral home case until the Court decides whether it will grant review in Zarda and Bostock.
The high court has scheduled the three cases for consideration at multiple conferences only to postpone them multiple times. The trio of cases are currently scheduled for consideration for later this week on January 4, 2019. The three cases qualify as a major circuit split, making them the ideal cases for the Court to take. It is hard to predict what the Court will do, but certainly, when there is an important issue to resolve such as the ones presented in these cases the Court is more likely to grant review.