On Oct. 8, the U.S. Supreme Court will hear oral argument in a slam-dunk sex discrimination case.
Thomas Rost, the owner of a group of Michigan funeral homes, fired Aimee Stephens, a six-year employee in good standing, after she informed him that she would no longer be coming to work as Andrew, but rather as her true self, a woman. The court will consider whether Rost’s actions constitute a violation of the sex discrimination provision of Title VII of the Civil Rights Act of 1964.
Stephens should win her case for the very simple reason that she was unquestionably fired because of her sex. Indeed, her case is about as strong as one can imagine.
She doesn’t need to have a comparator, but if she did, she has the perfect comparator: herself while she was presenting as Andrew Stephens and was an employee in good standing. Normally a claim by a woman who claims she was fired while a similarly situated man wasn’t, would invite contrasts in their circumstances, positions, qualifications, etc.
There is no more perfect comparator than the same person presenting as a man and succeeding then later announcing she is in fact a woman and suddenly being terminated.
But a comparator is not necessary when there is direct evidence that the termination was because of the employee’s sex. It’s often been said that direct evidence is almost never available, because “employers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law.”
But here, in both his contemporaneous statements and sworn testimony, Rost has explained that Aimee’s sex was the reason for her firing, specifically, “because he … was no longer going to represent himself as a man. He wanted to dress as a woman.”
He objected to her using a woman’s name and to presenting as a woman at work “because he’s a man.” This is the exact type of “ample direct evidence” that the federal appellate court in Atlanta cited in a 2011 case saying that Vandy Beth Glenn, also fired after disclosing her intent to transition on the job, had proved her sex discrimination claim.
The employers argue that favoritism of one sex is necessary to violate Title VII, but there is no mention of a favoritism requirement in the statute, nor in Supreme Court case law.
Statutory Language Debate
The employers attempt to support their favoritism argument by pointing to the phrase “discriminate against” in the statute, and by quoting this language from two Supreme Court cases: “the critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Services Inc., quoting the Ginsburg concurrence in Harris v. Forklift Sys. Inc. But neither argument works.
The statutory language cited is not applicable to Aimee’s case. Title VII declares it “an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.”
So if “against” ever has any significance, it is not when someone is fired (or not hired); then, the question is whether the firing was because of that individual’s sex. And logically “discriminate against” is used simply to make the three categories parallel examples of adverse consequences imposed upon the plaintiff.
Rejecting an applicant or firing an employee is always an adverse action; no preposition with a negative meaning such as “against” is necessary. But you can “discriminate in favor of” someone in the terms and conditions of their employment, hence the need for “against” to make the sentence parallel and sensible.
You may have noticed that the quote from the cases refers to “disadvantageous terms or conditions of employment,” and indeed the quote appears in two sexual harassment cases where the employer did not fire the employee but instead altered the “terms and conditions” of the workplace with a hostile work environment.
Even if the “critical issue” in some harassment cases is one sex not being similarly mistreated, the context is very different from the firing/refusing to hire context. Nobody thinks that, in recognizing a claim for male-on-male sexual harassment, the court was saying that such a claim exists only when there is no harassment of women employees by men.
And the remainder of the Oncale opinion clarifies that favoritism—a/k/a “[d]irect comparative evidence” of how men and women were treated—is only one of multiple ways of proving a Title VII case.
In short, the fact that Aimee was fired because of her sex is all that is needed for her to prevail.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Gregory R. Nevins is the Employment Fairness Project director at Lambda Legal. Nevins successfully argued that Title VII sex discrimination protections extend to LGBTQ workers before the Second Circuit and Seventh Circuit.