Sixth Circuit Case with Implications for Employers and Schools to Get SCOTUS Review

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SCOTUS will be hitting the books to determine the scope of protections in Title VII.

Last year, the Sixth Circuit issued a groundbreaking decision in employment law relating to Title VII of the Civil Rights Act. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)the Court held that the prohibition against discrimination on the basis of sex in 42 U.S.C. § 2000e-2(a)(1) protected an employee on the basis of gender identity. In particular, the Court held that Title VII’s reference to “sex” necessarily included protections for transgender or transitioning persons. Citing the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the Sixth Circuit also found that discrimination against transitioning or transgender employees was also prohibited as an impermissible “sex stereotype.” As the Sixth Circuit noted, in Price, the Supreme Court acknowledged that unlawful discrimination occurred where a female employee alleged she experienced adverse employment actions for failing to “walk … femininely, talk … femininely, dress … femininely, wear make-up, have her hair styled, [or] wear jewelry[.]” According to the Sixth Circuit, there was no reason that this same rationale should not apply to stereotypes that relate to an employee’s gender identity.

On Monday, the Supreme Court granted certiorari on the Sixth Circuit’s decision, specificaly as to the question of whether Title VII protects employees on the basis of their status as transgender or under the “sex stereotypes” prohibition from Price Waterhouse. At the same time, the Court granted cert to consider contrary results from the 2nd and 11th Circuits which addressed whether Title VII’s sex discrimination prohibition extends to sexual orientation. Given that Title VII applies broadly to employers across the United States which have more than 15 employees, including state and local governments, the grant of cert in these cases clearly has the potential to impact school districts and its employees in and outside of the Sixth Circuit.

In addition, as Mark Walsh of the School Law Blog, aptly noted, these cases could have broader implications as well for school districts. As Walsh explained, the interpretation of one Title of the Civil Rights Act often serves as a precedent that can affect the interpretations of others. Thus, if SCOTUS chooses to affirm the extension of protections in Title VII to gender identity or sexual orientation as some lower courts have done, it could affect other federal statutes, including Title IX, which may affect the rights of students as well as school employees. As such, the Supreme Court’s decision to review Harris Funeral Homes is certainly significant for schools, their employees, and potentially their students in and outside of the Sixth Circuit.


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