Tuesday, May 10, 2016

DOJ vs. North Carolina: The HB2 Lawsuits

    And so it begins.  Yesterday, North Carolina filed a declaratory judgment action to challenge the US Department of Justice's position that HB2 discriminates against transgender people because of their "sex" in violation of Title VII, Title IX, and the Violence Against Women Act (VAWA).  The DOJ responded with a lawsuit of its own against North Carolina.  Here’s a quick rundown—focusing mostly on the Title VII dispute.


    Last week, by letter dated May 4, 2016, DOJ told North Carolina Governor Pat McCrory that, because of HB2, the State was engaged in sex discrimination in violation of Title VII as well as “a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies," because of a State executive order that declared HB2's restrictions to apply to all cabinet agencies.  Why? Because of HB2, non-transgender state employees (and other public employees) "may access restrooms and changing facilities that are consistent with their gender identity in public buildings, while transgender state [and other public] employees may not."  (For a parallel letter to the University of North Carolina (“UNC”) as to Title IX and VAWA violations, see here.)

    DOJ’s reading of Title VII's prohibition on employment discrimination "because of such individual's . . . sex," 42 U.S.C. § 2000e-2(a), accords with a DOJ December 2015 DOJ memo. There, DOJ reasoned:

[A]s a matter of plain meaning, Title VII’s prohibition against discrimination “because of . . . sex” encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).

Some federal courts have read Title VII similarly, though the US Court of Appeals for the Fourth Circuit (which covers North Carolina) has not expressly decided that issue.

North Carolina Sues

    The predictable response to DOJ’s letter: North Carolina's lawsuit against DOJ.  In it, they've asked a federal district court to declare that (1) obeying HB2 "regarding bathroom and changing facility use by state employees" doesn't violate Title VII or VAWA; and (2) there is no Title VII or VAWA violation in any event, given State law allowing "accommodations under special circumstances for employees who need exceptions to state policy regarding bathroom and changing facility use by state employees."

    Their main Title VII reasoning: “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”

    Unfortunately, this just dodges DOJ’s main point—by restricting bathroom access based on a person’s “biological sex”, North Carolina thereby discriminates “because of . . . sex” under Title VII when a transgender employee isn’t allowed into a bathroom that’s consistent with that employee’s gender identity.

    Alternatively, the State's lawyers cite Title VII decisions upholding gender-specific dress and appearance requirements, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006), to support their view that Title VII permits "gender specific regulation in the workplace."  And that includes, they argue, gender-specific regulations that "balanc[e] the special circumstances posed by transgender employees with the right to bodily privacy held by non-transgender employees in the workplace."  The complaint doesn’t specify this privacy right—maybe they mean the tort of intrusion upon seclusion, e.g., Tillet v. Onslow Memorial Hospital, 215 N.C. App. 382, 384-86 (2011).  And what are those "special circumstances posed by transgender employees" that implicate privacy?  The complaint is vague about that, too.  Maybe they mean to conjure the mythical “bathroom predator”? On its status as myth, see, e.g., here, here, and here.

DOJ Sues Back

            By yesterday afternoon, DOJ had filed its own lawsuit in federal district court against North Carolina and other State entities, including the University of North Carolina (“UNC”), alleging Title VII sex discrimination; Title IX sex discrimination by UNC; and sex and gender-identity discrimination by UNC and the North Carolina Department of Public Safety in violation of the VAWA.

    On the Title VII claim, DOJ’s complaint tracks its May 4 letter and further declares that by following HB2, North Carolina “stigmatizes and singles out transgender employees,” causes their “isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.” 

    Meanwhile, on the Title IX claim, DOJ has an advantage—G.G. ex rel. Grimm v. Gloucester County School Board, No. 15–2056, 2016 WL 1567467 (4th Cir., April 19, 2016).  There, the Fourth Circuit deferred to the US Department of Education’s reading of a Title IX regulation on the comparability of school-provided “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. DOE read this regulation to mean that, in assigning such facilities by sex, schools had to treat transgender students consistent with their gender identity.  A Fourth Circuit panel agreed (2-1), emphasizing doctrine requiring judicial deference to agency interpretations of their own regulations. 

    Can DOJ extend the G.G. ex rel. Grimm reasoning to its Title VII claim?  Well, there is an EEOC guideline on restrooms:

Some States require that separate restrooms be provided for employees of each sex. An employer will be deemed to have engaged in an unlawful employment practice if it refuses to hire or otherwise adversely affects the employment opportunities of applicants or employees in order to avoid the provision of such restrooms for persons of that sex.

29 C.F.R. 1604.2(b)(5).  The EEOC, however, has not expressly read this text to mean that an employer adversely affects transgender employees’ employment opportunities if it provides separate bathrooms but doesn’t assign access to them consistent with employee gender identity.  However, in an EEOC administrative appeal, it did read Title VII to require an employer to grant a person restroom access that's consistent with that person’s gender identity, see Lusardi v. Dep’t of the Army, No. 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015).



--Sachin Pandya


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I just wanted to add to this helpful synopsis that the EEOC has also issued a Fact Sheet on the restroom access issue, taking the position that gender-identity appropriate restroom access is required under Title VII: https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm.

Posted by: Katie Eyer | May 11, 2016 11:55:22 AM

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