NEW YORK CITY — The positions of the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) on whether Title VII of the Civil Rights Act protects employees from discrimination based on transgender status are 'contrary' to each other, EEOC acting chair Victoria Lipnic said Thursday during Epstein Becker Green's Workforce Management Briefing in New York.

On Wednesday, DOJ filed a brief that weighed in on a case — Harris Funeral Homes v. EEOC — that is pending before the U.S. Supreme Court. In that case, the 6th U.S. Circuit Court of Appeals found an employee had been fired because of her failure to conform to sex stereotypes as well as her transgender status, amounting to a violation of Title VII's prohibition of discrimination on the basis of sex. In its brief, DOJ argued the 6th Circuit "erred" in its decision, saying in part that "the ordinary meaning of 'sex' does not refer to gender identity."

DOJ's stance represents the administration's position, and EEOC remains in direct disagreement. The commission's guidance on the issue has been directly challenged in court, but the agency continues to enforce its position, suing employers that don't abide by its directive.

DOJ also argued that the High Court should hold the petition in Harris pending the court's decision on granting cert to two cases involving discrimination on the basis of sexual orientation: Zarda v. Altitude Express and Bostock v. Clayton County, Georgia. "If the Court denies review in Zarda and Bostock, the petition for a writ of certiorari in this case [Harris] should be denied," DOJ said.

Employer takeaways

The split between EEOC and DOJ is closely related to the ideological difference between the two entities over employment discrimination on the basis of sexual orientation. Federal appeals courts also remain split on the issue, and the Supreme Court has yet to take up a case that would clarify the matter for employers.

More to the point, DOJ's position in the Harris case has to do with whether the issue of discrimination on the basis of gender identity, as it pertains to Title VII, constitutes a "deep circuit split" among federal courts, Lipnic said. If the Supreme Court were to deny certoriari to Zarda and/or Bostock, she added, DOJ is arguing the court should do the same in the Harris case "by and large because there is not the kind of deep circuit split in the courts on the gender identity issues as there is on the sexual orientation issue."

The DOJ reiterated its stance on the issue of harassment generally, citing an October 2017 memo from U.S. Attorney General Jeff Sessions. "The Department does not 'condone mistreatment on the basis of gender identity.'" It continued, saying: "The Department also 'has vigorously enforced,' and 'will continue to' enforce, Title VII and other laws that 'protect against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals,' as well as laws that specifically prohibit gender-identity discrimination."

"I think we are all circuit court watchers at this point," Lipnic said. "All of this is going to unfold in the next few months certainly with whatever the Court decides to do, whether they decide to take these up on cert. Stay tuned."

As the Supreme Court weighs its next move, compliance experts continue to advise employers not to discriminate on the basis of either gender identity or sexual orientation. Supporting transgender employees at work, particularly during high-stress life events like the decision to transition from one gender identity to another, is just one area in which HR and managers can create compassionate solutions.