Just last week, 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 workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.
The 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 discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.
The law’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. In other words, 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 unanimously held that “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.” But the panel took the farther step of affirming 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 that have reached the issues.
However, buried in 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 groundswell of courts seeking to course-correct causation analysis. 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 thus competes with the 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 may recognize the embedded anti-classification approach in this “but-for causation” theory. Adopting a formalist, abstract approach, anti-classification is a highly disputed form of analysis that would only prohibit the act of classifying people within one forbidden category over more contextual discrimination analysis. By design, it is binary (i.e., male-versus-female) thinking that would ignore intersectional discussion of race, class, and other factors that bring social context to how our sex and gender are perceived.
While we await the Supreme Court’s decisions in the pending trio of Title VII cases, those of us who, like Aimee, believe in the capacity of human understanding must do our part to expand the conversation also.
Shirley Lin an acting assistant professor at New York University School of Law. Her article, “Dehumanization Because of Sex” is forthcoming this summer in the Lewis & Clark Law Review. Professor Lin publishes and speaks frequently on topics including sex and disability discrimination, the rights of LGBTQIA+ workers, legal theory, and litigation.
Suggested citation: Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST – Academic Commentary, May 18, 2020, https://www.jurist.org/commentary/2020/05/shirley-lin-aimee-stephens/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
