Litigation Update: Title VII Cases

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RG & GR Harris Funeral Homes has been serving the Detroit area for more than 100 years. To ensure that the family members and friends of a deceased love one are focused on processing their grief, the funeral home has professional conduct and dress codes. In 2007, the funeral home hired Stephens, a biological male, who agreed to abide by these codes, including the company’s sex-specific dress policy, in his work as a funeral home director. Six years later, Stephens approached the funeral home’s owner, said that he was actually a woman trapped in a man’s body, and expressed his intent to come to work wearing a dress. The owner was very concerned about Stephens and also about other employees and clients; he ultimately determined that it was best for everyone to part ways. The EEOC sued and claimed that this was “sex” discrimination under Title VII. The 6th Circuit agreed, but the Supreme Court has now agreed to hear the case. Although the federal government now concedes that it was wrong in the interpretation of Title VII that it persuaded the 6th Circuit to adopt, Stephens, represented by the ACLU, defends the 6th Circuit’s ruling. This teleforum will examine: (1) whether the public meaning of “sex” discrimination when Title VII was enacted in 1964 included gender identity and transgender status, and (2) whether Stephens has stated a claim for sex stereotyping under Title VII.


John Bursch, Founder, Bursch Law PLLC and Vice President of Appellate Advocacy and Senior Counsel, Alliance Defending Freedom


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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Friday, June 14, 2019, during a live teleforum conference call held exclusively for Federalist Society members.       


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on the Title VII cases that the Supreme Court recently granted cert on. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today we are fortunate to have with us John Bursch, who is a Founder at Bursch Law, and also Vice President of Appellate Advocacy, and Senior Counsel at The Alliance Defending Freedom. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. John, the floor is yours.


John Bursch:  Thank you, Micah. I'm very happy to be here and happy to be talking about these Title VII cases because they're going to be among the most important decisions on the U.S. Supreme Court's docket in the 2019 term. We expect that these cases will be argued either in October or November. The Court's inclination is to have them in October, but the attorney for one of the parties, his wife is expecting a baby in October, and so it may have to be pushed off to the following month.


      I'm representing the Harris Funeral Homes party in the Title VII case involving gender identity. There are also two related cases that I'll be speaking about today involving sexual orientation. But all three cases concern the meaning of "sex" in the phrase "discrimination based on sex" in Title VII, and essentially, what that word sex meant, what the public understanding of sex was when Congress enacted Title VII in 1964. But before getting into that legal issue, I'll give you just a little background about the cases.


      In the case that I'll be arguing, Harris Funeral Homes, the funeral home has been in business for more than 100 years in the Detroit area. In fact, the original location was just across the street from the old Tiger Stadium. And the current owner's grandparents lived on the second floor, and his great-grandparents lived on the third floor of that building.


      They've been ministering to families for many, many years; in order to do that, have had a professional code of conduct and a professional dress code that all employees are required to follow. The dress code includes a sex-specific requirement. Also, it prohibits the employees from having tattoos, wearing anything flashy, the idea being that the funeral home wants to keep its clients, the family and friends of the deceased loved one, focused on processing their grief as opposed to focusing on the funeral home or its employees.


      While a biological male employee, Anthony Stevens applied for a position as a funeral home director. And he got that position and committed that he would follow all of the policies including the sex-specific dress code. Six years later, he came back to the owner, Tom Rost, and indicated that he was actually a woman trapped in a man's body, that he would be taking two weeks off, and that after that two weeks was over, would come back to work dressed as a woman.


      Mr. Rost thought about Stevens's request. He was very concerned for Stevens as well as for Stevens's wife. In addition, he had other things to consider with that request, including the women who worked for him. There was an 80-year-old woman, in particular, who would be sharing a bathroom with Stevens on a going forward basis. In addition, he had to think about the family and friends of the loved ones. Many of those are repeat clients. So that means someone who came in because their mother died in January and saw Anthony Stevens might come back in July because their father died and see Aimee Stevens.


      And after taking all those things into consideration, he respectfully told Stevens that this was not going to be able to work out. As a result of that, the EEOC filed a lawsuit, and the Sixth Circuit declined to dismiss the case, holding that the sex discrimination provision in Title VII included claim space on gender identity, transgender status, and cross-dressing.


      The other two cases arise out of the Second and the Eleventh Circuit. In the Second Circuit, we have Altitude Express v. Zarda. In that case, the employee, Zarda, was strapped to a woman as they were parachuting, which was the company business. And the allegation from the customer is that Zarda, who is a man, was flirting with her and making some inappropriate sexual touching. In an effort to relieve any stress about that, he said, "You don't need to worry about me. I'm gay." And as a result of the incident, he was terminated. Zarda insists that he was terminated because he revealed his sexual orientation. The company insists that he was fired because of the inappropriate touching.


      Interestingly, there was a state law claim for discrimination based on sexual orientation that went to a jury in that case, and the jury found in favor of the employer. But the Second Circuit concluded that sex discrimination under Title VII not only allowed a claim for sexual discrimination -- I'm sorry, sexual orientation discrimination, but that that claim was different than the state law claim for sexual orientation,  and on that basis was prepared to remand it for trial before the cert petition was granted.


      The final case in the Eleventh Circuit is Bostock v. Clayton County, and that involves a county employee who was accused of mismanaging public money and terminated for that reason. The employee insists that that was not the basis for the termination. In fact, that was just a cover-up because he was gay and that the Clayton County officials had fired him because of his sexual orientation. In that case, the Eleventh Circuit held that Title VII sex discrimination prohibition does not include a claim based on sexual orientation.


      And so the employer and the employee in Altitude and Bostock actually came up on opposite sides of the reading. It's the employer that's the petitioner in the Second Circuit, Altitude Express; it's the employee in Bostock who is the petitioner in Eleventh Circuit. But the Court has realigned the parties for argument, so for all practical purposes, all of the employees, Zarda, Bostock, and Stevens, will be on the petitioner's side, and all of the employers, Altitude Express, Clayton County, and Harris Funeral Homes, will be respondents. 


      In addition, the two sexual orientation cases, Zarda and Bostock, have been consolidated for purposes of oral argument. And the Court anticipates that the oral argument will take place in over two hours, with one hour devoted to the sexual orientation cases and one hour devoted to the gender identity case, Harris Funeral Homes.


      So the first question presented by all of these cases is what is the meaning of sex? Or as the employers will be framing it, what was the public meaning of sex in 1964 when Congress enacted Title VII? It's important to clarify that the standard isn't what was actually in the legislators' heads in 1964, but rather what the public would have understood sex to mean. As an advocate for Harris Funeral Homes, we think that the answer to that question is pretty easy because notions of gender identity, in particular, were not even in the vernacular in 1964. It was a nascent concept that was first mentioned at an international conference held in Europe that same year. And it was not something that Congress was thinking about.


      With respect to Zarda and Bostock, the answer really isn't any different. Although sexual orientation was a concept that would at least have been spoken about in 1964, it's fairly clear that that's not what anyone would have understood sex discrimination to mean. The word sex was amended to the proposed Title VII bill at the last minute. Title VII was originally intended just to prohibit race discrimination or discrimination based on ethnicity. But there was a late add of the word sex; some people say to protect women, some other people say to try to prevent the bill from getting passed, almost as a poison pill. But either way, it did pass, and for decades after that, everyone understood it meant to mean biological sex and nothing more than that, not sexual orientation nor gender identity.


      So the more interesting question then becomes sex stereotyping. In a case called Oncale, O-N-C-A-L-E, the U.S. Supreme Court recognized that sex stereotyping could be a basis on which someone could make a claim under Title VII. And so the two circuits that ruled in favor of the employees in these cases, the Sixth Circuit and the Second Circuit, relied substantially on that sex stereotyping theory and said that when someone fires someone because of their sexual orientation or because of their gender identity, they're doing it because of improper stereotypes about what a man or a woman should be and who they should be attracted to.


      But that's really a misreading of the Oncale case because the U.S. Supreme Court did not recognize sex stereotyping as an independent cause of action. What the Court actually explained was that sex stereotyping could be used as evidence to support a claim based on regular old sex discrimination. So for example, if the employer had stereotypes about women that caused the employer to treat women differently than men, that evidence would then be a valid basis to find that there was sex discrimination. But there would still have to be some conclusion, a finding by the jury or the judge as a trier of fact, that men and women were treated differently.


      So you bring that forward and consider it in the context of the funeral home and the transgender employee, and there's no evidence whatsoever that men and women were being treated differently because of sex stereotyping. In order for a claim like that to go ahead, an employee would have to demonstrate that men who were transgender, at least biological men who were transgender women, were being treated differently than biological women who were transgender men. And the same type of analysis would apply in the sexual orientation context. It would come down to whether the employer was treating a man who had a same-sex attraction differently than a woman who had a same-sex attraction.


      But in any of these cases, there has to be proof that men and women are being treated and affected differently. And the fact that sex stereotyping comes into the mix can only be evidence in support of a finding that men and women are treated differently. It is not an independent cause of action. If the U.S. Supreme Court would recognize sex stereotyping as an independent cause of action, it would dramatically expand the scope of Title VII liability for employers, contrary to any existing employer's understanding of what the statute has meant since 1964.


      And now, the employees in these cases will point out that in other contexts, the U.S. Supreme Court has used different theories to expand employer liability under Title VII. For example, sex harassment was probably not something that the public would have thought about, didn't appear to be what the Congress was thinking about when they enacted Title VII in 1964, and yet, the U.S. Supreme Court has recognized that sex harassment is actionable under Title VII.


      But an action for sex harassment is radically different than an action for sex stereotyping. In a sex harassment case, the end result is still that men are being treated different than women, or women are treated differently than men. So it's a subset of the exact category that Congress was trying to prohibit when it passed a discrimination based on sex. In contrast, with sex stereotyping,  it's now creating liability even in a context where men and women are not being treated differently vis-à-vis each other. And that's exactly the kind of expansion of statutory liability that, ordinarily, the Supreme Court and lower courts should not be engaging in.


      And part of the unfairness of all of this from the employer vision perspective is that there was a fairly clear understanding of what Title VII meant up until about two or three years ago as these types of cases started to wend their way through the system. And it would be patently unfair for the EEOC originally, but now a court to impose liability on an employer based on a change in law that could not have been reasonably anticipated.


      We can all appreciate this in our everyday life if you just think about speed limits. I'm going down the road at 55 miles an hour in a 55 mile per hour zone, and a police officer pulls me over and gives me a ticket for going 20 miles an hour over the speed limit because today, 55 means 35. That does not give me any notice whatsoever ahead of time about what the change in law is so that I can conform my conduct to it. And it would be the same if the Supreme Court would impose liability under the circumstances that are presented in these three Title VII cases.


      What's more, if the U.S. Supreme Court was to somehow reinterpret the meaning of sex so that it would actually mean gender identity or include sexual orientation, that has massive ramifications that expand well beyond employer liability. The word sex appears all over the place in the federal code as well as in many state statutes and regulations. If you think about, for example, Title IX, which ensures that women and girls have equal opportunity based on sex in high school and college, particularly in athletics, changing the meaning of sex could have a drastic impact on that equal opportunity.


      There was recently a high school girls' track regional meet in Connecticut, and the top two finishers were male students who identified as female. As a result of that, they took the two spots on the podium that could have gone to women. They took the two spots in the finals that could have gone to two women. In addition, there were college coaches there who were recruiting for their own track teams and offering scholarships, and they were depriving women of the opportunity to get those scholarships. And so changing the definition of sex in the context of Title IX would radically decrease the effectiveness of a statute which was enacted specifically for the purpose of giving women and girls more equal opportunities.


      It also comes up in the context of bodily privacy. Title IX also applies to the privacy facilities in a high school or a college. And the courts and the federal government have long recognized that schools can treat biological boys and girls differently based on their sex, and that there's nothing discriminatory about that. But if the meaning of sex changes, that means a boy who identifies as a girl, or even who just says that he's a girl, would have access to the girls' showers and restrooms and locker rooms. And that can cause all kinds of interesting conflicts and stress for the students, particularly for those women who have been victims of sexual assault in the past.


      It would also affect the privacy spaces in a place like a women's shelter. And there's actually a live case on this very issue that's taking place up in Anchorage, Alaska. There's a shelter that gives women safe place to stay for the night when they've been victims of sexual or physical assault. There was a man who was drunk and physically injured who showed up at the doorstep, said that he was a woman, and demanded that he be allowed to sleep there at the shelter with the abused women.


      The shelter said that because of his drunken stupor and his medical issue that they were not going to be able to help him. They referred him to a local hospital. But after word got back to the Anchorage City Council, they made it clear to the shelter that going forward, if a man identifies as a woman and comes to the shelter, they must allow the biological man to sleep three feet away from these women who have been raped and abused.


      There are many other contexts where sex and changing its definition might come into play, including the religious liberty rights of surgeons and other doctors who are asked to perform sex change operations. It happens in the context of the workplace and in education with respect to the pronouns that people are going to use. Litigation on that very topic has been percolating in the courts over the last 12 to 18 months.


      So as you kind of think about the ramifications of changing the meaning of sex, it quickly becomes apparent that this is exactly the type of situation where courts should not be wading in and imposing their own policy preferences by changing the meaning of words as they were publicly understood at the time of enactment, but that instead, this should be changed, if at all, as part of the democratic process. That gives everyone the opportunity to sit down at the table and to discuss how best to protect the rights of everybody who's involved; religious liberty rights, the free speech rights, the bodily privacy rights, as well as the rights of individuals who have same-sex attraction or gender dysphoria.


      It's not an easy question to figure out how all those things should properly balance, but that's exactly what we have a legislative process for. And so I think all three employers in these cases will be respectfully submitting to the Supreme Court that this is something for the legislature and the President to solve, not for the judicial system. And with that, I would be happy to take any questions that anyone may have.


Micah Wallen:  All right. John, I had a question of my own. You spoke a little bit about how this term carries across various state statutes as well as Title IX and throughout the federal code. Is there a way, and do you think that they will pursue a way to try and define this just for Title VII rather than just saying, "This decision is withheld to Title VII," or do you think they're really going to try and answer this for all those codes with the full realization that this is going to have national implications? What route do you think they're going to take there?


John Bursch:  I think the likely route is that they'll cabin their decision to Title VII, but certainly the ramifications of changing the meaning of sex across federal laws is going to be presented to them by the parties because, inevitably, if the U.S. Supreme Court says that sex in Title VII means something different than what everyone understood it to be, there are going to be lower courts going forward who are going to naturally apply that in Title IX and other contexts.


      In fact, there is already precedent on the books that the courts will routinely use Title IX cases to help inform Title VII cases, and vice versa. And so no matter what they say in their opinion, I think it will be, as a practical matter, impossible to cabin a change in the meaning of sex. And that's why it opens the Pandora's box with respect to all of these other issues.


Micah Wallen:  All right. We will now go to our first question.


Caller 1:  Good afternoon. It sounds like you're well prepared for the argument. And thank you for presenting this afternoon. I have a question as it relates to the funeral home case. Is this an issue of sexual stereotyping as opposed to how that term has been defined in other case law such as that women in general can't lift more than a certain amount of weight? It seems to me that a dress code is a different type of restriction versus how sexual stereotyping has been interpreted in the past.


John Bursch:  Yeah. Well, that's one of the important reasons why the Supreme Court, at least to date, has not recognized sexual stereotyping as an independent claim because the courts have long recognized that there are differences between men and women that employers can lawfully take into consideration. And that's why an employer can have a separate restroom facility for men versus women without violating Title VII, recognizing the biological differences, but could not, for example, have different restrooms based on someone's race or some other characteristic that, unlike sex, doesn't effect the privacy concerns that come up with a bathroom.


      In reference to the sex-specific dress code in particular, the EEOC's own manual recognizes that sex-specific dress codes are permissible under Title VII for that very reason, that biological men and women are different and can be accommodated differently. And there's a -- I believe it's a Ninth Circuit case which addressed that very question, and—maybe it was Eleventh. I'm sorry, I don't remember the circuit—that went on at great length to explain why sex-specific dress code was not itself a type of stereotyping that would be violative of Title VII sex discrimination prohibition.


Micah Wallen:  One more question actually just came through, so we'll go ahead and move to that one.


Caller 2:  Yes. Good afternoon. I came in not at the very beginning of your talk, but I enjoyed what I heard. I'm curious as far as the courts go, in your presentation, you spoke really about what the meaning of the word sex was at the time the Civil Rights Act of 1964 was passed. It's kind of an originalist-type analysis. What is the likelihood that the various judges will take that approach? Will they simply reject it out of hand? It seems quite reasonable to me. I mean, it seems to be a ridiculous topic that shouldn't have gotten to the courts. But it's gotten to the courts, so what do you think's going to happen as far as actually looking at definitions of the dictionary, perhaps, back in the mid-1960s, would be actually referenced?


John Bursch:  Well, I think it would make sense for them to follow the originalist perspective. And I predict that at least five, but more likely more than five will follow that approach, the principle reason being that the meaning of a law can't change over time unless it's been amended.


      One of the examples that we used in our cert petition was the word blockbuster. Back in the World War I era, a blockbuster was known as a large bomb or an explosive device. And so you could imagine that a city or a state might have a prohibition on citizens possessing blockbusters. Well, today, a blockbuster means a movie hit, but I don't think anyone would say that it would be fair to use that 1920-eras law to prohibit you from owning a hit movie on a DVD or in some electronic format in your home. But the word blockbuster's meaning has changed, but the law has to stay the same.


      And even among the judges on the Supreme Court who may not typically be thought of as originalist the way someone would think about Justice Alito, Justice Thomas, will regularly refer to the original public meaning of the text during oral arguments. In fact, there was an exchange a couple of terms ago where someone was trying to make an argument based on legislative history and policy, and Justice Kagan immediately piped in and said, "Well, that's all well and good, but that's not really the way that we interpret laws around here. We just look at the plain meaning of the text and try to figure out what it meant at the time of enactment." So it seems more likely that that's the direction they would go.


      If you're looking for an example of what it would look like if they went in a different direction, and I would commend to you the concurring opinion of Judge Posner in the Seventh Circuit case, Ivy, which dealt with this same issue, whether sex meant, or means, sexual orientation under Title VII. And Judge Posner was upfront and honest about the change that was occurring. He agreed that no one could reasonably say that sex meant or included sexual orientation in 1964, but his view was that judges had a responsibility to occasionally engage in what he called "judicial updating" so that a statute could be brought current.


      I think it's very, very unlikely that there's going to be momentum for the Supreme Court to go in that direction. I cannot count five votes that would do that. And as I said, I think it would actually be quite a few more than that that would object to and resist a judicial updating approach to statutory interpretation.


Micah Wallen:  And without further ado, we'll move to our next question.


Caller 3:  Following up on your last answer, I was wondering with regard to that Posner decision and your example of blockbuster, are there cases you have to counter where the Supreme Court did uphold the reinterpretation of statute by reinterpreting the word?


John Bursch:  Not in recent times. I think if you went back to the Brennan court, maybe even the Burger court, you might be able to find some examples of those, although I can't think of any off the top of my head. But Justice Scalia, as I'm sure many on the call know, really solidified the judicial interpretive theory of originalism. And that theory quickly took root at the Supreme Court and today is almost unassailable. The Judge Posner approach, really, throughout the federal judiciary would be in a distinct minority. So I don't think there are any recent cases, certainly not any within the last 15, 20 years where the Court was willing to engage in judicial updating.


Caller 3:  You said it spread through the Court. Do you mean both -- also on the more liberal wing of the Court, they're accepting Scalia's principle?


John Bursch:  Yes. And a great example of that would have been Heller, the case involving the interpretation of the Second Amendment. Despite opinions on both sides of that question, there was really no one advocating that the Court should define what they thought the Second Amendment meant based on the words as they interpreted them today. Both sides, in making their arguments for what the Second Amendment meant, did so with reference to the historical record at the time that the Second Amendment was adopted. And so that was true of the Justices that we would characterize as conservative and as liberal. So there seems to, at least for now, be a consensus at the Supreme Court that statutory and constitutional interpretation should be done with respect to the public meaning of words at the time of enactment.


Micah Wallen:  We have another question lined up, so we'll move to the next caller.


Caller 4:  I'm just curious. Do these cases raise at all equal protection claims? I'm aware of at least one case where the plaintiffs are seeking to raise equal protection claims seeking to change the sex on their birth certificates to match their gender identity. Is there any overlay with that, or is the analysis any different on that?


John Bursch:  Yeah, that's a good question. There are no equal protection claims that are stated in any of the petitions or responding briefs here, so it's not going to be presented to the Court. But that theory has been floated in academic circles, and probably in other litigation, and in some part because of a question that Chief Justice Roberts asked during the same-sex marriage argument, Obergefell, where he said, "Well, could it be an equal protection violation when you say that Bob can marry Eve, but Bob can't marry Steve?"


      And I think the answer to that actually tracks what we were talking about with respect to the way that the Court has interpreted Title VII, that under the equal protection clause as well, you need to demonstrate, in order to be successful, that men and women are being treated differently vis-à-vis each other. And so it doesn't matter that the result is different if a man wants to marry a man versus a woman. The question would be do we allow a man who has a same-sex attraction to get married but a woman who has a same-sex attraction, we would not allow to marry a woman. That's the way that the U.S. Supreme Court has typically framed equal protection claims, just as they have Title VII claims.


      I'm not familiar with the birth certificate litigation, so I don't want to get over my skis and give any opinions about that. But at least under the current Supreme Court jurisprudence, you would have to be in a position of showing that men and women are treated differently vis-à-vis each other to be successful on a claim like that.


Micah Wallen:  All right. We'll now move to our next question.


Caller 5:  Hi. My question is about whether or not the Court could potentially decide the case on more narrow grounds than what's presented regarding the definition of sex, a little bit like what we saw for the Masterpiece Cakeshop case?


John Bursch:  The Supreme Court can always do anything it wants to, so I would never rule out the possibility that they would find a more narrow ground to rule. I think it would be difficult for them to do that here because there isn't an animus theory like there was in Masterpiece, nor, frankly, any other theory that would allow them to do something narrower.


      The closest thing to that would be to adopt for the first time the stereotyping theory as an independent claim as opposed to evidence for a claim of discrimination based on sex. But if they did that, that itself would be a very, very broad holding. There would be nothing narrow about that, and it seems unlikely that they would engage in something like that when the question of what kind of rights should be awarded in a situation like the ones presented in these cases is actively being considered in Congress right now.


      One thing that we haven't discussed is that amendments have been proposed to Title VII to change the coverage to include sexual orientation and gender identity at least a dozen times, and in each one of those instances, Congress ended up not adopting the amendment. There are a couple of competing proposals pending in Congress right now that would attempt to do that very thing, not only in the Title VII context but in others. So given that, it seems less likely to me that a Supreme Court majority would create a new cause for sexual stereotyping, even though that would be a slightly narrower holding than one that just simply redefines the meaning of sex.


Micah Wallen:  John, it looks like it's time for closing remarks.


John Bursch:  Well, keep an eye on these cases. Obviously, they are of great jurisprudential significance. As I indicated at the outset, oral argument is likely to be October or November, which means that we're looking at an opinion that would issue sometime probably starting February or March up until June of 2020.


      If anybody is interested in participating as an amicus in these cases, the employees are all going to be filing their topside briefs within the next week or so, and you would have seven days after that to file a supporting amicus brief. On the employer side, if you wanted to file a brief there, they are scheduled to file their bottom-side briefs on August 16th, which means that amici briefs would be due August 23rd.


      Otherwise, I just want to thank everybody for their time and attention today. I think these are fascinating cases and look forward to seeing what the Supreme Court chooses to do with them.


Micah Wallen:  And on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at Thank you all for joining us. We are adjourned.


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