The Trump Administration Wants to Make It Easier to Fire Women Who Act Too 'Masculine'

By Ian Millhiser, ThinkProgress

20 August 19

May the Lord open.

hirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

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 Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse 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 administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.

“Because of . . . sex”

Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims to “believe that the Bible teaches that a person’s sex is an immutable God-given gift.”

In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, as a textual matter, Stephens should have an easy case. Title VII’s language is capacious. It forbids any discrimination “because of” an employee’s “sex” (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, “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.”

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. That’s discrimination because of sex.

Stereotyping

Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping — or, at least, she does under those cases as they currently stand.

Price Waterhouse 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 “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'”

Meanwhile, Justice Sandra Day O’Connor said that the plaintiff in Price Waterhouse could proceed with her lawsuit because she proved that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to make her a partner. So Brennan’s opinion plus O’Connor’s opinion equals five votes against sex stereotyping in the workplace.

Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that “Title VII creates no independent cause of action for sex stereotyping.” Though Kennedy conceded that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.

Which brings us to the Trump administration’s argument in is Harris Funeral Homes brief:

Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse 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 majority’s view in Price Waterhouse at all. To the contrary, it’s the exact same view that Justice Kennedy took in dissent.

Having confused the majority’s view with a dissent, the Trump administration then claims that much of Price Waterhouse must be rolled back.

Indeed, it’s notable that the Trump administration is only able to cite one lower court opinion that supports its novel view of Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho — a Trump judge known for writing aggressive opinions that read more like Fox News editorials than like judicial decisions. The Ho opinion that Trump’s Justice Department relies upon does not cite any other case that shares his reading of 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 cite Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasn’t able to find a single one that supports his reading of Price Waterhouse is compelling evidence that Ho is wrong.

It’s unclear just how drastically the Trump administration’s reading of Price Waterhouse would roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. Unless Price Waterhouse is read narrowly, the Trump Justice Department warns, “a dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.”

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 “equally burdensome” 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 don’t tailor their appearance to their employer’s gender norms.

One lesson of 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 administration’s crusade against trans rights, the consequences will spill over to all workers.