By Guest Contributor Prof. Shirley Lin, New York University School of Law
A few days ago, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to gender justice and workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit, one of the most nuanced examinations of sex discrimination to issue from a court.
The panel decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in workplace discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII within causation analysis and anti-classification analysis.
Title VII’s plain language prohibits discrimination against any individual “because of such individual’s . . . sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee; it is a separate element from the trait element. Thus, “because of . . . sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.
Thus, the Sixth Circuit reasoned “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” Crucially, the panel took judicial notice of the non-binary sex spectrum, and stated:
Moreover, discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person's identification with two religions, an unorthodox religion, or no religion at all. And “religious identity” can be just as fluid, variable, and difficult to define as “gender identity”; after all, both have “a deeply personal, internal genesis that lacks a fixed external referent.”
Ms. Stephen’s 2018 victory for LGBTQIA+ communities, and all workers, capped a wave of Title VII and Title IX decisions since 2015 in which four circuits have overruled misguided precedent holding that sex discrimination does not reach anti-trans and anti-gay hostility under a narrow definition of sex. (A fifth signaled it would do the same, if given the chance.) So have a majority of district courts to reach the issues.
However, the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the doctrinal correction. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and competes with the Sixth Circuit’s and others’ approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersex, non-binary, and gender-fluid people.
Equality scholars will recognize the embedded “anti-classification” approach in this “but-for causation” theory. Adopting a more abstract, formal equality approach, anti-classification logics limit the reach of discrimination to only the act of classifying people within a forbidden category over more contextual anti-subordination approaches. By design, it would not support intersectional analysis of race, class, and other factors that inform the social context of our sex. To further theorize the approach of the post-2015 groundswell, I have proposed multiaxial analysis as methodology that avoids reinscribing a fixed-sex, unidimensional binary.
While we await the Supreme Court’s decision, those of us who, like Aimee, believe in the capacity of human understanding must do our part to expand legal discourse as well.