Discrimination Law Archives – Southern California Law Review

Hiring and Firing Based on Political Views

January 2026January 2026Scott Altman*

INTRODUCTION

A law professor’s Wall Street Journal op-ed urged law firms not to hire anti-Zionist students who, in his words, “advocate hate and practice discrimination.”¹ Although discriminating against employees or prospective employees based on political speech is illegal in some places, including California, where the professor works,² employers have announced similar positions,³ and private organizations have emerged to facilitate employment denial and other social and economic penalties for pro-Palestinian students, professors, and professionals.⁴

These events are hardly unique. Employers have excluded workers because of their views on sex or gender identity, including opposition to same-sex intimacy,⁵ support for same-sex marriage,⁶ and opinions that there are only two immutable sexes.⁷

Employers have fired employees for political speech or affiliations. An English company fired a bus driver after he won an election as a member of a far-right political party with racist positions.⁸ After the recent killing of right-wing activist Charlie Kirk, some conservatives successfully called for doxxing and firing people seen as celebrating his death or criticizing his views.⁹ Disney fired The Mandalorian actor Gina Carano because she compared the treatment of Trump supporters to that of Jews during the Holocaust.¹⁰ The Metropolitan Opera fired Russian-Austrian singer Anna Netrebko for refusing to condemn Vladimir Putin after he invaded Ukraine.¹¹ Seventy-five years ago, people in some U.S. industries were fired and shunned for perceived affiliation with the Communist Party.¹²

How should we assess these actions? Should the law forbid employment denial based on political or moral views, association, or speech outside the workplace? Should our assessment depend on whether the employee has reasonable views? The existence of organized boycotts targeting unpopular views? The employer’s motive (non-complicity, association, hatred, punishment, profit, job-effectiveness)? The employer’s size, the kind of job, or the procedural posture (firing versus not hiring)?

How do these examples differ, if they do, from #MeToo era efforts to hold sexual harassers accountable, including public dissemination of alleged harasser lists¹³ and the firing of accused harassers?¹⁴ Is doxxing alleged harassers different from doxxing alleged antisemites or alleged Communists?

This Article has two aims. First, it explains why ideological employment exclusion is typically wrong and appropriately prohibited. Individuals and society suffer serious setbacks from ideological exclusion: undermining personal integrity (a person’s ability to live according to their values), chilling public discourse, and exacerbating affective polarization (the tendency to dislike and distrust those with opposing views). Employers, by contrast, have less at stake. Sometimes, employers use ideological exclusion to pursue unreasonable goals, including corruption, unjust punishment, and disrespectful uses of non-complicity. At other times, employers use ideological exclusion for legitimate purposes, including protecting their associational rights and speech, as well as pursuing profitability. However, employers can usually achieve these goals without undermining employee authenticity or valuable public ends.

Second, I use these examples of ideological exclusion to examine the moral limits of social pressure, helping to sort out a longstanding puzzle. Criticizing, shunning, shaming, and boycotting are essential to our freedom. We use them to communicate, achieve political goals, punish wrongdoers, enforce norms, and exercise associational freedom. They also threaten to undermine vital interests. We use them abusively to silence dissent, punish people unjustly, and treat excluded people with unwarranted disrespect. This puzzle is often linked to John Stuart Mill. He embraced our right to shun and criticize the objects of our contempt and valorized the social pressure created as the natural consequence of misbehavior. However, he feared these same

techniques would undermine freedom, inhibiting their targets’ speech and inducing stifling conformity.¹⁵

I offer an account of social power’s limits that might address Mill’s puzzle. The account emphasizes fair norms of social cooperation. Most people want to speak freely, control associations, exert political influence, and punish wrongdoers. We also want to avoid pressures that undermine our freedom of association and speech, as well as unjust punishment. These interests sometimes conflict, and a fair resolution of conflicts requires setting reasonable terms of cooperation—terms justified by moral arguments that all reasonable people can accept. This Article uses employment denial to explore how fair norms of cooperation limit the permissible use of intentional and unintentional social pressure.

The Article includes five Parts. Part I outlines traditional justifications for banning ideological employment exclusion: it gives employers excessive control over employees’ lives, undermines democratic institutions, constitutes wrongful discrimination, and violates employee speech rights. These accounts are promising but insufficient. Part I then offers the Article’s central argument. Allowing ideological employment exclusion unfairly distributes opportunities for living with integrity and unnecessarily contributes to two social problems: self-censorship and political polarization. Part I presents the argument in general terms. Later parts fill in details and consider examples.

Part II discusses the intentional use of social pressure to change integrity-connected behavior. It argues that intentional uses of social pressure are rarely justified when the target behavior is central to integrity. They often aim to corrupt targets or impose unjust punishments. When intentional social pressure is used to impose deserved punishments, it risks dangerous expansion.

Sometimes, employers do not aim to change employee behavior. Instead, they risk public and private harm while pursuing aims connected to employer integrity, such as non-complicity, non-association, or employer speech. Non-complicity means avoiding certain connections (such as employment) with someone else’s allegedly immoral behavior. Part III argues that we should reject employer non-complicity as disrespectful and

that most employers can protect their integrity interests in speech and association in less harmful ways.

Part IV examines employer financial goals. For most employers, these too can be advanced in less harmful ways. A conclusion follows, offering final reflections that explain why the Article’s moral arguments counsel legal regulation. It revisits Mill’s puzzle and the moral limits of social pressure, returns to the examples that began the Article, and addresses the objection that we should allow employment exclusion against people who express hatred or other harmful views.

The Article does not detail how to structure legal rules, but several models are available. Throughout Europe and in several U.S. states, employment laws prohibit dismissal and sometimes refusal to hire based on philosophical or political beliefs, as well as speech and association outside of work.¹⁶ These laws sometimes exclude hate speech, speech advocating violence, or speech that is unconnected to the speaker’s worldview.¹⁷ They also exempt some employers and sometimes provide defenses for business necessity. This Article focuses on hiring and firing private-sector employees based on their associations and speech outside the workplace on topics unrelated to their employment. Questions about speech in and about the workplace (such as criticizing an employer or seeking higher wages or unionization) and in government employment are important but raise distinct issues.¹⁸

I. The Harm of Ideological Employment Denial

Like everyone else, employers have property and associational rights. In our market economy, absent pressing contrary interests, perhaps employers should be able to select employees as they wish, including based on the employees’ views and values.

Moreover, social pressures, such as shunning, shaming, and boycotting, serve valuable functions. When people do or say objectionable things, we communicate our disdain and enforce norms through social exclusion. As people often say, “Freedom of speech does not mean freedom from consequences.” Such pressure also supplements legal regulation. For example, the #MeToo movement used shaming and shunning to punish and deter illegal behavior and reinforce values. Employers have a presumptive right to participate in social exclusion that communicates disdain and enforces norms.

Nevertheless, the examples mentioned above strike people as morally and legally problematic. What is wrong with denying someone employment based on their views, speech, and associations? In the next Section, I briefly evaluate four standard accounts and explain why they need to be supplemented. I devote the following two Sections to outlining an alternative account: ideological employment exclusion unreasonably undermines employee efforts to live with integrity and exacerbates social problems of censorship and polarization.

A. Four Traditional Approaches

Writers often approach ideological hiring and firing from the perspectives of employment law or democratic theory. Progressive employment scholars situate it in the broader problem of employer power: we should abolish at-will employment and limit employers’ control over employees’ private lives.¹⁹ They lump ideological job denial with controlling employees’ diets, smoking habits, or sex lives.²⁰ Democratic theorists focus narrowly on exclusion based on party affiliation or support for specific candidates or ballot measures. Allowing employers to pressure employees about votes or political donations distorts our political process.²¹

I agree with both views, but they do not exhaust the problems with ideological hiring and firing. Many problematic job denials are unconnected to electoral politics. Although we have reason to worry about employers controlling their employees’ lives, control over their speech seems worse than control over their smoking (and should trouble people even if they do not object to employer power generally). For these reasons, we must supplement political and power concerns with a broader account.

Two other theories might better explain the range of concerns raised by ideological employment exclusion. Perhaps denying someone a job based on their views is wrongful discrimination, much like denying them a job based on their race, religion, or sex.²² Alternatively, denying them a job based on their expression might violate their free speech rights.²³ Although these claims have merit, they are only partly persuasive without supplemental accounts.

The goals of discrimination law are disputed. Various theories emphasize anti-subordination, immutability, and formal equality. Anti-subordination accounts, which focus on unjust, persistent, and systemic disadvantages suffered by some groups, seem like a poor fit because many people who are denied employment based on their views are not subordinated. Some employers refuse to hire Trump supporters.²⁴ They are not part of a subordinated group. Nor are Anna Netrebko and Gina Carano. Although pro-Palestinian protesters are advocating for oppressed people, the protesters are not (or not uniformly) part of subordinated groups. Additionally, the companies that deny them jobs believe they support anti-subordination because they are trying to combat antisemitism. Moreover, we may wonder if some ideological groups, such as avowed racists, are justly marginalized and do not deserve protection from subordination.

Immutability is generally a problematic basis for banning discrimination.²⁵ Even if we embrace immutability, it is unclear why we should regard ideas or their expression as immutable. People change their views and choose whether to speak. So, we need a theory to explain why pressuring people to change or hide their views is unreasonable.

Finally, formal accounts of equality must be supplemented to explain which features demand equal treatment and which allow unequal treatment. Formal equality advocates often quote Dr. Martin Luther King Jr.’s statement that we should judge people not “by the color of their skin but by the content of their character.”²⁶ One would think that a person’s beliefs form the core of their character’s content and that judging people by their beliefs shows them appropriate respect. Additionally, employees’ beliefs might be relevant to their job performance in ways their race and religion rarely are.

A free speech account seems more promising. Speech rights are not limited to subordinated groups or immutable characteristics. If employers can fire or refuse to hire people based on their expressed views, the prospect of lost employment might chill speech, harming individuals and society.

However, unlike discrimination, which is unlawful for many private entities,²⁷ free speech requirements in the U.S.²⁸ apply primarily to governments.²⁹ Even in countries that restrict private entities from limiting speech, the mere power to chill speech does not imply a duty to facilitate open dialogue.³⁰ For example, if young people refuse to date Trump supporters,³¹ their dating choices might chill pro-Trump speech. Indeed, some evidence suggests that Republicans systematically lie about their politics on dating apps.³² Yet, refusing to date someone for political reasons does not violate their political or speech rights.

Of course, employment differs from dating in many ways, including the centrality of associational interests in dating. I devote much of this Article to explaining how employer-created incentives differ from other social pressures that might silence unpopular views. However, merely noting that social pressure can inhibit speech does not explain when and why we should regard it as violating speech rights.³³ Explaining this requires addressing Mill’s puzzle.

B. Threats to Personal Integrity

We might address Mill’s puzzle and better understand employment denial by focusing on the value of living with integrity. Integrity (also called authenticity) means living according to the values we embrace by pursuing projects that match our values, avoiding actions that conflict with them, and, at least sometimes, revealing our values to others. Speech is critical to living with integrity in the context of social pressure, because being silenced by social pressure can render someone hypocritical.³⁴

We cannot always live according to our values. Doing so may require actions that harm others, including undermining their integrity. A core goal of social cooperation is establishing institutions that enable people to live authentically and, when conflicts arise, distribute opportunities for authenticity equitably.³⁵

These institutions sometimes place the responsibility for living authentically on individuals whose integrity is at risk. People must often be resilient in the face of pressure, protecting their capacity for authentic action and resisting incentives for hypocrisy. If I change or hide my views because I fear my friends will abandon me or people will criticize me, the fault lies with my weak character, not with my friends or critics. Resisting hypocrisy is my responsibility because criticism and friendships based on shared values are vital institutions that could not otherwise exist. This explains why those who will not date Trump supporters do not violate their speech or association rights. Nevertheless, a society in which people with unpopular views are broadly shunned and unable to find jobs does not sufficiently support authenticity. The question raised by the examples at the start of this Article (and the core of Mill’s puzzle) is how to allocate responsibility for sustaining authenticity between individual resilience and social restraint. If we need social restraint, sometimes the law can help achieve it.

Allocating opportunities for authenticity equitably demands that we sometimes constrain the use of social pressure.³⁶ Social pressure is usually wrong when used intentionally to change other people’s behavior in ways that undermine their integrity. As I will explain in Part II, it often threatens to corrupt targets or impose social punishments on people who are not culpable. Even when used for legitimate purposes, such as just punishment, the risk of expansion to illicit goals requires caution about using social pressure intentionally to alter integrity-connected behavior.

Sometimes, we inadvertently impose social pressure while pursuing other aims in ways that risk undermining other people’s integrity. Such unintended pressure is sometimes appropriate, as it is in the dating example. However, risking other people’s integrity is sometimes unjustified because our aims are illicit or can be achieved in less harmful ways. A fair opportunity to live with integrity will not favor employers pursuing illicit aims or goals that can be achieved without undermining integrity.

C. Two Public Harms: Affective Polarization and Censorship

In addition to undermining employee integrity, ideological employment denial contributes to two public harms: affective polarization and censorship.

Affective polarization (our tendency to demonize those who disagree with us) is a growing problem. We increasingly distrust those with different views, attribute bad motives to them, avoid interacting with them, live in separate places, and get information from different sources.³⁷ This problem fuels the demand for employment exclusion. As we increasingly dislike and distrust those with different views, we avoid connections with them, including workplace connections. In turn, employment denial might exacerbate polarization by increasing ideological segregation and distrust through non-exposure.³⁸ In this way, polarization and employment denial might form a vicious cycle.

Banning ideological employment denial might encourage politically integrated workplaces and support a willingness to work together despite political differences. We should not normalize the unwillingness to associate with or cooperate with people whose views we disdain. Instead, we need opportunities to build trust in depoliticized environments. An appropriately supportive workplace is a good candidate.

This argument for workplace integration mirrors Cynthia Estlund’s claim about race discrimination. She argued that laws against employment discrimination can foster more public cooperation and social trust outside the workplace.³⁹ We ban race discrimination primarily because it wrongs victims, but a side benefit might be that doing so facilitates cooperation across racial lines. The same might be true for ideological workplace integration. We should ban ideological exclusion because it undermines employee integrity for insufficient reasons. An added benefit to banning ideological exclusion might be that it reduces polarization. Some evidence suggests that workplace exposure to people with different political views fosters political tolerance.⁴⁰ As with race discrimination, ideological integration may require legal rules to prevent exclusion.

The benefits of ideological integration do not depend on workplaces fostering political discussion or expression. Indeed, a depoliticized workplace, where such discussions are discouraged, may facilitate trust-building across ideological lines, allowing people to view their political opponents as whole individuals.⁴¹ Of course, depoliticization is not appropriate for all workplaces.⁴² But for many employers, it is feasible. The argument does not depend on businesses seeking or benefiting from ideological diversity if providing diversity does not impose significant internal burdens (discussed in Part IV). Like Estlund’s, my argument offers a reason to ban exclusionary policies. The resulting workplace diversity might lead to more cooperation.

In addition to exacerbating polarization, ideological employment exclusion might undermine the public benefits of free speech. Although the actions of a few employers who fire or refuse to hire employees for their controversial speech would not affect public discourse, many employers might (in concert or merely in parallel) exclude employees with unpopular views. They might do so intentionally or based on algorithms that screen applicants’ social media. When paired with organized groups and politicians pressing employers to boycott employees with unpopular views, these exclusions could chill expression. Chilling is unnecessary because (as I argue below) most employers’ goals are either illicit or can be achieved without resorting to employment denial or speech suppression.

This speech-chilling concern may seem alarmist. After all, most employers seem to care little about employee speech outside the workplace. If, on occasion, a few law firms refuse to hire protesting students or an opera company fires a singer, those individuals might suffer an unjust penalty. However, few people will change their behavior to avoid an exceedingly unlikely job denial.

Perhaps the worry is alarmist. However, culture wars and cancel culture appear to be intensifying, as is the use of algorithms to screen job applicants, including their social media activity.⁴³ A rational person concerned about job access might err on the side of caution, avoiding any controversial statement, even if there is no current movement to deny jobs based on a specific controversy.⁴⁴

D. Summing Up

The argument in Part I outlined three harms caused by ideological employment exclusion: it threatens integrity, exacerbates polarization, and chills speech. However, these harms are not necessarily things we should ask employers to prevent. As I noted earlier, we need reasons to ask employers to help preserve free speech and employee integrity rather than impose on employees the responsibility to resist the temptations of silence.⁴⁵

Part II will outline why employers should be responsible for some of these harms. Employers often use social pressure for illicit purposes. They also impose social pressure for legitimate purposes that could be pursued in less harmful ways. Before elaborating on these ideas, I want to recall traditional worries about employer power and anti-subordination. I mentioned that power-based accounts did not fully capture the wrong of employment exclusion, which seems more problematic when it is controlling employee speech than other aspects of employees’ lives. As to anti-subordination, many excluded employees (including famous opera singers and law students who might be denied jobs at large law firms) are not necessarily members of subordinated groups.

Although I stand by this position—that employer power and anti-subordination concerns do not fully account for the wrongfulness of ideological employment exclusion—these concerns do explain why employers’ wrongful use of social pressure is especially problematic. The harm that employers inflict on integrity, polarization, and free speech would not be possible if employers did not exercise power over their employees. The need for employment as a source of basic sustenance is why employer exclusion creates intense social pressure, and this is one reason why asking employees to resist it is problematic.⁴⁶ Additionally, although some employees who are excluded based on ideology are not among the most vulnerable in society, employer power often silences vulnerable people and threatens to suppress speech supporting subordinated groups.⁴⁷ Part II will emphasize other reasons for thinking that employer exclusion results in unjust distributions of opportunities for authenticity. However, the source of employer social power and its frequent use to undermine integrity for those with little power and suppress speech advancing their rights further justify restricting employer freedom rather than imposing duties on employees to resist pressure on their integrity.

The following sections elaborate on my core claims—that employers’ interests do not justify harms to integrity, speech, and polarization because employers either aim at illicit ends or can pursue legitimate goals in less harmful ways. Part II addresses intentional efforts to change employee behavior. Part III examines employer integrity interests in non-complicity, non-association, and speech. Part IV considers employer economic interests.

II. Intending to Change Behavior through Social Pressure

Ideological boycotts sometimes aim to corrupt their targets or punish people who do not deserve punishment. To the extent that employers aim for these outcomes, we have reason to limit their power to do so, both to fairly allocate opportunities for integrity and to combat the public harms of censorship and polarization. Even if employers intend to change integrity-related behavior for legitimate reasons, such as deserved punishment, we should often restrict such efforts, because they cannot easily be confined to legitimate cases, and we have reason to fear that they will be weaponized as tools in culture wars.

A. Corrupting Aims

Organized commercial shunning is typically called a boycott.⁴⁸ Some boycotts intentionally pressure targets to change, hide, or act against their values by offering financial or other incentives. These boycotts are corrupting (they aim to corrupt their targets) because they seek to induce others to act for morally inappropriate reasons.⁴⁹ Suppose a business donates profits to charities that I think are immoral. If I organize a boycott to induce the owners to stop supporting these causes, I am treating them disrespectfully. I try to entice them to abandon or hide their moral views or to refrain from acting on them. I do not hope to persuade them that their views are wrong. Instead, I aim to pressure them into hypocrisy by offering a bribe to compromise their morality. I would reject money as a legitimate reason to change or hide my moral views. So, I should not aim to entice others to abandon their values for profit.⁵⁰

Of course, rejecting commercial ties with someone can occur outside an organized boycott and need not aim to change anyone’s behavior. Below, I address several examples, including actions based on non-association or non-complicity. Moreover, boycotts aimed at changing behavior are not always corrupting. Some boycotts target businesses to change their profit-maximizing choices, such as an anti-sweatshop boycott encouraging a manufacturer to provide better working conditions. The boycott intentionally pressures the business to change its behavior. However, the boycott does not corrupt its decision because the choice (to exploit or endanger workers) aims at profitability. Corruption arises when social or financial pressure entices someone to change their behavior for reasons the target considers morally irrelevant.⁵¹ In the anti-sweatshop boycott example, there is no corruption, because the employer was already committed to making decisions based on profitability, and the boycotters tried to make exploitation less profitable.⁵²

Another example of non-corrupting pressure intended to change behavior is shunning or shaming people for actions that are unrelated to integrity. If I shame you for failing to contribute to a group project you agreed to join, hoping to spur increased contribution, the pressure to contribute is not corrupting, assuming your non-contribution was due to mere laziness rather than a principled opposition to contributing. Such social pressure does not undermine your effort to live according to your values by tempting you to embrace irrelevant reasons. Your laziness likely does not reflect the values you embrace.

The employment boycott against pro-Palestinian student activists seems to have been aimed at corrupting them. The professor who urged law firms not to hire anti-Zionist students supported the boycott by saying, “When students face consequences for their actions, they straighten up.”⁵³ He regarded the students’ views and associational choices as hateful. So, he aimed to deter them from expressing those views or continuing their associational choices by creating financial consequences. Admittedly, the professor offered other reasons for the boycott, including a concern that law firms or their clients might not want to affiliate with allegedly antisemitic students—associational and economic concerns rather than a corrupting incentive.⁵⁴ However, the “facing consequences” and “shaping up” language suggest that creating a corrupting incentive was a central aim of his boycott plan.

B. Punitive Aims

Social pressure that is intended to influence behavior is not corrupting if it seeks to deter and punish wrongdoing.⁵⁵ Social punishments supplement state regulation and enforcement as a means of preventing harm.⁵⁶ For example, much of the #MeToo movement’s success relied on boycotts, shaming, and shunning to punish and deter sexual harassment.⁵⁷ That movement reminds us that some speakers deserve punishment for culpable expression: their speech causes harm and contributes little to debate. Workplace harassment laws appropriately restrict harassing speech that undermines workplace equality.⁵⁸

Perhaps a comparable idea applies to hate speech and employment exclusion. Although courts in the U.S. have not upheld hate speech laws, there are plausible moral arguments for punishing hate speech, which harms people, undermines equality and respect, and (if narrowly defined) contributes little to debate or knowledge.⁵⁹ We might consider embracing hate speech curtailment by non-governmental forces, because social pressure can help combat the harm of hateful ideas by punishing those who express them.⁶⁰ Job denial might deter and punish hate speech, much like shaming and shunning deter and punish sexual harassment.⁶¹

Although social punishment for hate speech has some appeal, we should approach it cautiously. Even when free speech and enforced orthodoxy are not at stake, social punishment is problematic; it circumvents due process and other legal protections, such as the requirement of proof beyond a reasonable doubt, the right to cross-examine witnesses, the right to appeal, and rules against disproportionate punishment. Punishing speech adds new dangers to these general worries.

The appeal and the dangers of this approach are illustrated by punishing pro-Palestinian protesters. The appeal lies in trying to combat antisemitism, a problem I do not mean to minimize. Many Jews viewed recent campus pro-Palestinian protests with concern, connecting them with antisemitism and antisemitic violence. They viewed refusals to condemn Hamas and chants of “from the river to the sea” as barely coded calls for violence against Jews.⁶² When paired with rising antisemitic violence,⁶³ including violence and harassment during some protests⁶⁴ and claims of discriminatory behavior by universities,⁶⁵ they saw the need to condemn and punish antisemitic rhetoric and advocacy.

The dangers of punishing speech are equally evident in protester boycotts. One danger is punishing people for non-culpable speech—speech that includes political ideas or does not embrace racial and religious hate. Boycotters cite several objectionable actions by campus activists. Student organizations would not invite speakers who supported Israel’s right to exist,⁶⁶ and protestors refused to condemn Hamas⁶⁷ and used slogans such as “from the river to the sea,” which boycotters interpret as a call for the violent removal of all Jews from Israel.

Of course, some protesters deserve punishment. They engaged in culpable behavior, including violence,⁶⁸ threats of violence, targeted harassment,⁶⁹ the use of racial and religious epithets and stereotypes,⁷⁰ and statements that Jews deserve to die.⁷¹ However, the proposed boycott did not target only protesters who were credibly charged with such wrongdoing.⁷² Nor was the violence and harassment committed by some protesters so widespread that we can presume all protesters participated.

I believe most student protestors do not deserve punishment. The speech and associational acts targeted by boycotters differed from harassment, epithets, stereotypes, and calls for violence.⁷³ Their purposes and intended meanings were ambiguous, and some reasonable interpretations of their speech included appropriately protected political ideas.⁷⁴ This ambiguity and political content argue against culpability.⁷⁵ Although political speakers sometimes use ambiguous statements to dog-whistle intentionally hateful ideas, it seems unlikely that most student protestors had that intent.

Beyond ambiguity and political content, we should protect statements made during protests that would be unacceptable in other contexts. Discourteous and violent-sounding speech has a traditional home in political protests and social movements.⁷⁶ Provocative slogans draw attention to causes and build enthusiasm; they are rarely literal statements of belief or intent. South African anti-Apartheid protestors sometimes rallied around “one settler, one bullet.”⁷⁷ Anti-police protesters in the U.S. invoked “No justice, no peace” or “All cops are bastards.” The gun rights movement repeated, “I’ll give you my gun when you take it from my cold, dead hands.”⁷⁸ Malcolm X urged “justice by any means necessary.”⁷⁹ Such slogans vary in whether they can be interpreted as non-violent or risk inciting actual violence. But they are commonly used to protest injustices.

Some people are unpersuaded by the claim that most pro-Palestinian student protesters were blameless.⁸⁰ Although I do not share this view, even if it is correct, social punishment for the protestors’ speech is problematic. One narrow reason is that punitive attitudes toward students (especially by their teachers) are inappropriate when the students’ misbehavior stems from an insufficient understanding of complex situations. Education is a more effective and morally appropriate response to uninformed young people and the radical viewpoints they often embrace. The argument is not that these students are too young to be responsible for their actions but that wrongs born of ignorance deserve different responses from wrongs born of greed, malice, and indifference to human suffering.⁸¹

Of course, specific considerations about student speech and protest slogans do not cover all employee speech. This leads to a broader set of reasons against punishing hate speech. We often slide quickly down the slope from punishing low-content hate speech to punishing speech that offends us, advocates outcomes we think deplorable, or suggests that the speaker harbors hateful beliefs. If we leave the decision about which ideas are hateful to the private sector, we may find that the category spirals to include many political ideas that people think are morally mistaken. Perhaps critics of pro-Palestinian protests are correct that protesters’ beliefs and statements are antisemitic, harmful, and based on hatred or bias. But these beliefs and statements also represent political views; they are not mere epithets. If we declare that harmful and biased expressions are culpable even though they communicate political views, we open ourselves to declaring other views culpable. Some people regard Black Lives Matter as supporting racist views,⁸² and many other people view opposition to affirmative action and Diversity, Equity, and Inclusion (“DEI”) as racist.⁸³ That they can be described this way should not lead us to punish their expression or to let the state decide which political views are hateful enough to deserve social punishment.

Punishing those whose views we find distasteful is unjust. Such punishments are also harmful, as they threaten to censor dissenting views. This worry is hardly speculative. Social and legal pressure in the U.S. and Israel has led many advocates for Palestinian rights to fear that they cannot speak freely.⁸⁴ The Trump administration’s recent visa revocations, deportations, and attacks on universities confirm that their fears are well-founded.

The worry about expansion extends from punishing speech to punishing silence. One reason for boycotting the campus protesters was their refusal to condemn Hamas. Similarly, Hollywood professionals were fired for refusing to sign loyalty oaths,⁸⁵ and the Metropolitan Opera fired Anna Netrebko for refusing to denounce Putin. It appears that corrupting Netrebko’s choices and punishing her were among the opera’s aims.⁸⁶ Given the understandable tendency to support one’s home country, reasonable fears of retaliation for denouncing a sitting leader, and the harms of coerced speech, we should not punish a refusal to condemn people or swear allegiance.

One might hope that legally regulating social punishment could prevent its excessive use to punish valuable speech and dissenting views. Laws could permit ideological employment discrimination only against those who engage in hate speech, narrowly defined. However, this approach seems likely to fail. Lawmakers often aim to suppress dissenting views by calling them hate speech, as one can see from recent hearings in the U.S. Congress.⁸⁷ European efforts to restrict ideological employment exclusion but leave hate speech unprotected have been problematic.⁸⁸ Some people think that hate speech laws in Europe have been applied in ways that produce self-censorship.⁸⁹ In the employment context, several workers were fired for declaring that only two sexes exist, and trial courts approved their dismissals.⁹⁰ Although these trial decisions were later overturned, the disputes show how easily categories can expand.

Even if we could trust lawmakers and courts to confine ideological discrimination to narrow examples of hate speech, this approach likely could not be implemented in the U.S. due to constitutional concerns about vagueness and content-based speech restrictions.⁹¹

Injustice and censorship are not the only concerns about punishing speech. Social penalties may increasingly be used to persecute ideological enemies, exacerbating our polarization.⁹² Moreover, weaponizing employment exclusion might backfire. Many current proponents of ideological boycotts could become targets of boycotts if political sentiments change. Currently, worldwide support for Israel is falling. If Zionism became sufficiently unpopular, we might see pressure on companies not to hire Zionists, an expanded version of BDS efforts. This outcome could mirror prior hiring bans that targeted Jews, including the purge of alleged communists in Hollywood.⁹³ The danger of that outcome should worry those who would wield punitive job denial against anti-Zionists.

To summarize the argument, ideological employment denial often aims to corrupt targets by inducing them to change or conceal their principled commitments through financial inducements. It also punishes people who have not acted culpably. Even when used to punish and deter culpable behavior, the practice cannot easily be contained for practical and constitutional reasons. Of course, not all ideological employment denial aims to corrupt or punish. In the following two Parts, I consider other employer purposes.

III. Inadvertent Social Pressure and Employer Integrity

Most ideological employment exclusion is unconnected to boycotts or punishment. It occurs at the firm level, is uncoordinated with other employers, and does not aim to change employees’ or prospective employees’ behavior. Instead, firms seeking to protect their interests inadvertently impose social pressure, risking, but not intending, harm to individuals and the public. In this Part, I consider employer efforts to protect their integrity by avoiding complicity and unwanted associations, as well as engaging in employer speech. I defer discussion of the employer’s economic goals to Part IV.

I will argue that exclusion based on non-complicity is usually unreasonable. Non-association and employer speech are legitimate aims. However, for most employers, non-association is not a pressing need, and employers can pursue their speech goals without undermining employee integrity. Employees’ integrity interests and the public’s interest in employee speech, as well as the public’s interest in avoiding polarization, counsel against ideological employment exclusion when employers can pursue their goals in other ways. In some instances, equity also favors employee interests because the burdens of employer exclusion fall on disadvantaged groups and suppress speech needed to defend the interests of subordinated groups.

A. Non-Complicity

Some employers might deny people jobs to avoid complicity. Complicity means materially or symbolically supporting or benefiting from someone else’s allegedly immoral acts. Avoiding complicity is part of living with integrity, much like expressing one’s views. Although people disagree on what constitutes undesirable complicity (and, of course, also disagree about what acts are immoral), living according to one’s values, including one’s views about complicity, is part of living with integrity.⁹⁴ Unlike the corrupting and punitive aims discussed above, avoiding complicity does not aim to disrupt other people’s efforts to live authentically (as a goal or an intended means of pursuing a goal).

Non-complicity is not a typical reason for ideological employment denial. Few employers believe they become complicit by hiring someone whose views or acts they regard as immoral. Because commerce connects everyone with people who spend money on things they think are illicit, most people embrace a constrained interpretation of complicity.⁹⁵

However, employers who believe that paying employees makes them complicit in employees’ speech and actions present a conflict between two integrity interests. If we protect the employer, a potential employee must remain silent or risk unemployment. If we do not, an employer must become complicit or cease employing people. The decision about who to protect depends on which person should accept the setback to protect the other’s integrity. This demands an equitable allocation of opportunities for living authentically.

How should we evaluate this conflict? We might ask who is morally right. Does the employer have a correct view of complicity? Are the employee’s actions immoral? However, the value of living with integrity (for both employer and employee) persists even for people with mistaken views about morality or complicity. Moreover, when we move from discussing moral to legal questions, it seems unlikely that a liberal state should base employment rules on the truth of employees’ or employers’ controversial moral views, or that we should trust the state to make such decisions.⁹⁶

We might be tempted to reject the employer’s view of complicity as unreasonably expansive. Many people think it is implausible that an employer becomes complicit in an employee’s actions merely by employing them, particularly if employment does not advance the employee’s goals beyond providing a salary. However, this view of complicity is no more expansive than the views commonly embraced by consumers who participate in boycotts, such as those who refused to buy sandwiches from Chick-fil-A because its owner donated to charities opposing same-sex marriage.⁹⁷

In a recent article on vendor discrimination, I argued for an approach based on reason-giving. Religious vendors sometimes claim that selling wedding-related goods to same-sex couples makes them complicit in actions the vendors regard as immoral. This creates a dilemma: If the law permits them to discriminate, same-sex couples are denied equal status in commerce. Conversely, if the law disallows discrimination, vendors become complicit or must change their businesses.

Justifications for rules should be acceptable to the people they disadvantage. The vendor offers a justification based on a seemingly reasonable aim—avoiding complicity—that any person should consider valuable and be willing to facilitate. However, this neutral description masks its underlying disdain. The same-sex couple must suffer discrimination because the vendor views actions central to their identity as immoral. Accepting this reason requires customers to treat the vendor’s desire to avoid their supposed sin as reasonable. No one should have to accept as reasonable the perspective that they are sinful, because doing so undermines their dignity. In contrast, when the same-sex couple seeks service from the vendor, they are not trying to express or enact any disdain for the vendor’s religion. I concluded that, in most cases, we should regard the vendor’s effort to live authentically by discriminating as unreasonable, because its justification asks victims to accept others’ disdain for them as a reason for rules that disadvantage them. This is especially unreasonable when vendors have other means of maintaining integrity, such as finding other jobs.⁹⁸

To be clear, my argument did not rely on condemning the vendor’s beliefs as homophobic or immoral. It would be equally disrespectful for a feminist baker not to provide a cake for a fundamentalist wedding because she thinks fundamentalist marriages are oppressive. The disrespect comes from invoking someone’s sinfulness or the evil of their views to justify

denying commercial contact. It does not lie in judging which party has morally correct views.

A comparable argument applies to most cases of complicity-avoiding ideological employment denial. For example, imagine a law firm fires or refuses to hire a lawyer whose social media post said that Palestinian violence was an understandable response to Israeli oppression. The firm believes that employing this lawyer would make it complicit in terrorism or antisemitism. Not hiring the lawyer inhibits her ability to express solidarity with Palestinians and, therefore, to live authentically. The lawyer’s desire to express her views does not rely on disdain for the law firm or its values. However, the law firm’s non-complicity efforts depend on its disdain for the lawyer’s deeply held views. By invoking non-complicity with terrorism or antisemitism, the firm asserts that the lawyer’s values are evil—that is, antisemitic or terrorist-sympathizing. The law firm’s non-complicity justification masks disdain in the same way as a feminist baker who does not want to sell wedding cakes for fundamentalist weddings.⁹⁹ Again, the problem is not that the law firm is wrong to think the lawyer’s position is antisemitic or that the feminist baker is wrong to condemn fundamentalist marriages as oppressive. The problem is expecting someone committed to the other side to accept your moral judgment as a reason to exclude them from commerce.

Of course, employment exclusion differs from vendor discrimination in several ways, including having different material consequences. Being fired or not hired often imposes financial and personal costs far greater than being turned away by a vendor. However, my point concerns the interest in non-complicity, which is similar in both examples. In any case, the more significant material stakes for employees only strengthen the argument for restricting employer action based on non-complicity compared to the vendor argument.

Some scholars argue that we should accept non-complicity as grounds for excluding people from pursuing hateful or oppressive goals.¹⁰⁰ They might forbid most employer exclusion based on ideology but allow employers to deny jobs to racists or antisemites to avoid complicity. However, their position faces problems.¹⁰¹ Like the argument for punishing hate speech, this position has the potential to expand widely. Suppose employers can exclude antisemites based on non-complicity. Can they also exclude abortion supporters or opponents because people with these views favor murder or the oppression of women? What about supporters or opponents of DEI if the employer thinks their views are racist? Many positions on controversial issues can be described as hateful and oppressive. Exempting hateful positions from a general ban on employment exclusion might expand to cover a wide range of political speech.

My prior article concluded that vendors whose consciences preclude them from serving customers should protect their integrity by changing businesses.¹⁰² Their reason for excluding customers is disrespectful, and they have alternative ways to live with integrity. The same applies to employers who object to employing people whose values they reject. They should not employ people if they think employment makes them complicit in their employees’ speech or political acts.

This might seem unreasonably burdensome to employers. However, several considerations support it. First, disrespectful reasons should not be counted when assessing fair opportunities for living with integrity. Second, the position that employing someone makes you complicit in their activities is hard to accommodate. People who hold such views have as much interest as anyone else in living with integrity. But by embracing this view, they make outsized demands on others to help them avoid complicity. The harm they cause is not merely the undermining of one employee’s integrity. They create incentives for all potential employees to hide their views, thereby harming the public by exacerbating censorship and polarization. Unlike the values of speech and non-polarization, non-complicity serves only private ends. There is no public interest in expansive non-complicity views, parallel to the public interest in open discussion and non-polarization. Third, few people hold such broad complicity concerns, and fewer still hold them intensely. The law needs mechanisms to distinguish sincere invocations of a view strongly felt from pretextual and exaggerated versions. One sensible solution to this sorting problem is to ask people to protect their integrity, even at significant cost, rather than imposing costs on others.

B. Employer Non-Association and Speech

Employers might advance several associational interests to justify ideological exclusion. One interest is that they do not want to be near people whose views they dislike. This interest is sometimes a version of non-complicity, relying on the idea that the employer is morally tainted by proximity (discussed above). However, it might not reflect complicity; it might reflect discomfort with being around people with different views or distrust of people with different views.

We should resist exclusion claims based on employer discomfort and distrust. Discomfort often masks disdain and has been a code word to justify discrimination. More broadly, we should combat rather than indulge discomfort and distrust deriving from disagreement. Discomfort and distrust are at the core of affective polarization. The law should encourage people to become comfortable working across political and moral divides and to build trust by working together.

Other associational interests are not urgent for most businesses. They do not resemble intimate associations, in which bonds of affection and admiration are central to the relationship, or private groups devoted to causes or common interests, in which shared purposes are central to achieving the group’s goals. For this reason, courts have not accepted associational interests as pressing for most businesses.¹⁰³

Employers sometimes invoke speech interests to justify excluding employees. They hope that excluding certain workers will communicate their values to employees or potential customers. For example, to show customers and workers that the company embraces equality and diversity, it might refuse to hire workers who reject those values or fail to show adequate commitment to a specific view of equality in a diversity statement. Or, to show support for Israel, the employer might exclude those who protest Israel’s existence.¹⁰⁴

This argument has several problems. The main difficulty is that employers have many ways to signal their commitment to values without undermining others’ integrity or exacerbating social problems. They can state their values directly and demonstrate how those values shape the firm. Excluding those with different values is not necessary to achieve the end. Another problem is that such exclusion may have the effect (or even be a pretext for) objectionable discrimination or corruption. For example, an employer might want to signal its commitment to equal treatment of women by refusing to hire abortion opponents. In doing so, it might discriminate against people based on their religion or pressure potential employees to hide their views.

Although most employers do not need ideological exclusion to protect their speech and associational interests, there are exceptions. These might include organizations dedicated to political, religious, artistic, and moral goals.¹⁰⁵ Religious organizations and those with creative goals already demand the right to discriminate in some contexts.¹⁰⁶ They would likely seek similar exemptions from any law forbidding employer exclusion based on speech. Indeed, Disney tried (unsuccessfully) to defend firing Gina Carano by invoking its speech rights.¹⁰⁷

Exceptions may be warranted for mission-driven organizations, such as political groups or charities. Non-profits and political organizations may need employees who share their aims. Some for-profit employers have similar needs. For example, specialist law firms, such as labor-side employment firms, may screen for lawyers who favor their preferred clients.

The appropriate scope of such exemptions is complex. However, such exceptions must be narrowly drawn to prevent expansive or pretextual use that undermines the benefits of laws restricting ideological employment exclusion.

To summarize this Part, employers seeking to avoid complicity with employees’ views and actions should stop employing people if doing so compromises their consciences. Asking others to accept an employer’s disdain for their deeply held commitments does not rely on reasons the disadvantaged party can accept. We should reject employers’ discomfort as a justification for denying jobs and instead encourage people to become comfortable working together despite moral and political divides. Moreover, other associational interests are not pressing for most employers, and employers can advance their speech interests without ideological employment denial. That said, there are exceptions to these conclusions. Mission-driven employers, for instance, should be allowed to deny employment in narrow circumstances to protect their speech and associational interests.

IV. Inadvertent Social Pressure and Employer Economic Interests

Some employers use ideological exclusions for economic reasons. In most cases, however, employers can achieve their economic goals without undermining employee integrity, chilling speech, or exacerbating polarization. Below, I illustrate this conclusion using three economic interests: customer and employee retention, workplace efficiency, and merit.

A. Customer and Employee Retention

Businesses worry about their reputations. Employers may prefer to exclude employees with unpopular views because they do not want others to think the employer shares those views or to associate those views with their businesses. Such associations could lead to lost customers or difficulty recruiting and retaining employees.

However, this attribution argument is usually unpersuasive. For low-level employees, especially in large companies, few observers will know their views, and fewer still will assume that an employer shares them. In part, this is endogenous (that is, the inference drawn will depend on the background rule). If the law forbids ideological hiring and firing (and people know about the law), observers will be less likely to presume that an employer shares their employees’ views. Conversely, if ideological hiring is permitted and becomes typical, observers will have more reason to assume that an employer shares an employee’s views. That said, for smaller firms or high-level employees, the non-attribution interest may be weightier.

A related concern is when employees, particularly celebrities, are part of the product sold. Customers might not care about the employer’s views, but they may be so displeased by the employee’s statements that they look elsewhere for goods and services. Although this concern is legitimate, the Netrebko example highlights the dangers of protecting it. Perhaps the Metropolitan Opera fired Netrebko because it feared losing ticket sales or donations. However, unless the law requires evidence of lost income, this justification can easily mask employer dismissals based on punishment, corruption, discomfort, or non-complicity. Indeed, opera fans continue to

patronize venues that hire Netrebko,¹⁰⁸ suggesting the Metropolitan Opera’s fears may have been unfounded.

B. Workplace Efficiency

Employers may worry that employees will be uncomfortable around coworkers with unpopular views. This might lead to workplace inefficiencies or difficulty recruiting and retaining employees.

One might be tempted to dismiss this claim by pointing to studies showing the benefits of workplace diversity. However, these studies are equivocal, suggesting both benefits to creativity and drawbacks to efficiency.¹⁰⁹ If hiring employees with unpopular views leads to workplace disputes and distrust, the efficiency costs might outweigh the creativity benefits of viewpoint diversity. Moreover, employers can achieve substantial viewpoint diversity (and thus creativity) while excluding people with extreme views.

Indeed, one scholar argues that we should allow employers to discriminate based on ideology to protect workers from the harms of political polarization. According to R. George Wright, polarization and pressure to take stands on public controversies have politicized our workplaces to the detriment of worker comfort and efficiency.¹¹⁰ Although Wright acknowledges that banning ideological exclusion might support a social consensus that workplaces are depoliticized spaces—as I urge—he notes that this optimistic forecast lacks solid empirical support.¹¹¹

Wright’s skepticism is fair. My suggestion that we use workplace integration to fortify society against polarization might not work. However, reducing polarization is too important to allow the metastasis of political isolation and disdain. Even if we cannot guarantee success, we should pursue strategies to encourage integration and combat polarization.

Concerns about workplace instability stemming from political opponents working together can be addressed through alternative means. People who disagree about politics and religion have successfully shared workplaces. Managers can support such cooperation by limiting political discussions in the workplace,¹¹² modeling respectful interaction, and avoiding corporate stances on political matters that show disdain for those who disagree.¹¹³ Despite limits on political discussions, coworkers will likely learn that others hold vastly different views and may recognize that their disagreements do not impede cooperation.

Employers might seek to exclude employees or potential employees if they believe their speech outside the workplace signals a higher risk of harmful workplace behavior, such as workplace harassment. For example, chanting “from the river to the sea” in a campus protest might be protected speech, assuming it did not target Jewish students for harassment, but chanting it at a Jewish coworker during working hours could be illegal harassment.

Yet employers need not screen employees’ speech outside the workplace to prevent harassment. Absent other information about an employee, there is little reason to assume that employees will behave in the workplace as they do online or in political protests, or that they will not follow workplace rules.¹¹⁴

C. Merit

Employers might prefer employees who do not use intemperate language or express extreme or reductionist views. Such employees might be more cooperative workers or more subtle, better-informed thinkers. In this regard, screening for employee speech resembles testing for personality, knowledge, or intelligence.¹¹⁵

However, employers can assess these qualities without examining employee speech. They can instead rely on personality tests, competence tests, grades, and references.¹¹⁶ These alternatives would not undermine employee integrity, chill speech, or exacerbate polarization. There are concerns that employees may lie on personality tests to secure jobs.¹¹⁷ Even so, there is inadequate evidence to suggest that social media screening is superior to personality tests in predicting employee quality, although, admittedly, social media screening might be less costly.¹¹⁸

Employers might respond that no single metric predicts employee success equally well for all workplaces. In the absence of settled science, they should be permitted to use the screening tools that seem most suitable to them. This argument has some appeal, because employers are right when they say it is hard to predict employee quality. However, it also has the potential to be abused. Employers might cite intemperate language as a pretext (or be unconsciously biased) and exclude views they dislike by labeling them intemperate or reductionist.

That said, some controversial employee speech may justify merit-based exclusion if it reveals a candidate to be unqualified for specific jobs. Job candidates who deny established scientific consensus may be unqualified for jobs that require scientific or policy expertise. Those who embrace conspiracy theories despite contrary evidence may be unqualified for jobs as journalists or educators. However, even this exception needs to be narrowly interpreted. Science denialists or conspiracy theory enthusiasts should not be disqualified for jobs unlikely to require scientific abilities or knowledge of public affairs.

Employee speech can sometimes render an employee unfit for their job. The speech might undermine the employee’s ability to accomplish core job functions. Examples include teachers who make public remarks that demean their students, thereby undermining the trust needed between students and teachers, or police officers whose remarks demean the citizens they serve.¹¹⁹

To summarize, most employers’ economic concerns can be addressed without ideological job denial. Employee speech will rarely be attributed to employers or undermine their profits. There are some exceptions, such as celebrities and corporate leaders, who are integral to their employers’ brands. However, permitting job denial in these cases must be approached with caution lest business reasons be used as pretexts for other goals. Workplace unrest stemming from varied employee views can be addressed through effective management. Finally, screening employee speech is unlikely to be the only, or even the best, way to ensure employee quality. Other indicia of merit can be used without chilling speech and fostering polarization.

V. Final Reflections

A. Do We Need Legal Regulation?

We create social pressure through speech, association, and spending. We criticize, boycott, shame, and shun one another while pursuing aims central to our lives. However, these tools can be misused to suppress speech and diversity, undermine efforts to live according to one’s values, and exacerbate polarization. I have argued that most ideological employment exclusion falls into the second category: employers abuse social pressure either to pursue illicit ends or to achieve reasonable goals that could be achieved in alternative ways.

Sometimes, when people misuse social pressure, the best solution is counterpressure; we criticize, boycott, shame, and shun those who abuse these social tools. However, in other cases, legal regulation of social pressure is more sensible, such as when social pressure is used against the powerless, when mobs employ social pressure, or when pressure and counterpressure threaten to become a vicious cycle of revenge.

Legal tools are difficult to implement when people use social pressure for both valuable and illicit ends that are hard to distinguish.¹²⁰ However, if my arguments are correct, employment exclusion is rarely needed to pursue legitimate ends. Additionally, polarization and the targeting of unpopular views suggest that social counterpressure and self-restraint will fail as solutions. Thus, a regulatory solution likely makes sense.¹²¹ Legal rules governing social pressure can mitigate some of its downsides, helping to focus that pressure on cases where it causes less harm.

Admittedly, legal rules alone cannot prevent ideological employment denial. We must also build a social consensus against ideological job denial and in favor of free speech and cooperation across ideological lines. Employment laws are notoriously difficult to enforce, especially when

applied to hiring. Nevertheless, employment laws can provide occasional remedies and help shape this social consensus over time.

B. Moral Uses of Social Pressure

This Article began by asking what uses of social pressure are morally permissible and whether we can resolve Mill’s concern that social pressure might serve valuable ends while also censoring ideas, undermining integrity, and inducing unnecessary conformity. The tension Mill identified cannot be eliminated; social pressure, which is often a byproduct of rightly protected activities, sometimes threatens other people’s freedom. However, we can mitigate concerns about censorship, integrity, and conformity by protecting valuable uses of social pressure that cannot be pursued without risk to others and by discouraging uses in two kinds of cases: when social pressure is used for illicit ends and when it is used for legitimate goals that can be pursued in less harmful ways. Such social restraint requires institutions that fairly allocate opportunities for living authentically. They might help us avoid social pressure that needlessly curtails public debate and exacerbates polarization. They can also be alert to the possibility that social pressure will be used against people with limited power, inequitably allocating opportunities for integrity and suppressing speech necessary for emancipatory social movements.

Identifying legitimate uses of social pressure is easier when we recognize that it falls into several categories. One category of social pressure arises from its intentional use to change other people’s behavior. This pressure is permissible if it is not pursued to corrupt others or unjustly punish them. For example, we can try to change others’ behavior when they act carelessly or out of self-interest. We can shame ill-mannered strangers and shirking friends, or boycott companies that pay their workers too little. Such efforts do not corrupt their targets because the targets do not aim to exclude financial gain or personal reputation from their decisions. However, intentionally using social pressure becomes problematic when it disrespects targets by offering financial incentives to violate moral commitments, such as boycotting a merchant to deter it from donating to a charity or refusing to hire college students to deter their political speech.

Social pressure is also problematic when used to punish speech. Social penalties are often directed against those whose values we dislike, people whose speech is ambiguous, or those who offend us but have done no wrong. Even when we penalize wrongful speech, such as hate speech, we risk its further use in less straightforward cases, punishing the innocent and exacerbating tensions over culture war issues. In our pluralistic and increasingly polarized society, social penalties for speech should be avoided unless we find ways to restrict them to clearly culpable speech.

A second category of social pressure that undermines integrity arises as an unintended effect of actions taken while pursuing other, often valuable, goals. The reasons for imposing unintended social pressure can be central to the integrity of the person imposing that pressure and cannot be pursued otherwise. An example is refusing to befriend someone whose values I abhor. Friendship requires affection and admiration. So, the good of friendship cannot be pursued without risking the integrity of excluded people.

However, social pressure is inappropriate when the goals pursued are illicit and when we do not fairly distribute opportunities for living authentically. Sometimes, the interest pursued when imposing such risks is illicit. I argued that we should treat non-complicity as an illicit reason for employment denial. This is partly because it disrespectfully relies on reasons that undermine self-respect and partly because employers can avoid complicity without discriminating. Even when employers have good reasons for ideological exclusion, such as protecting speech and associational interests or advancing economic goals like profit and employee retention, most employers can adequately advance those goals through other means. We should insist they use those means because ideological job denial threatens to chill speech and exacerbate polarization. Moreover, because jobs are central to thriving in our society, social pressure created through job denial is often difficult to resist.

These ideas do not solve all the difficulties raised by Mill’s puzzle (and might not appeal to Mill). But they suggest some solutions.

C. Revisiting the Examples

The paper began with examples: job denials based on speech about Zionism, sex, and gender; the refusal to condemn Vladimir Putin; political comments about Trump and Charlie Kirk; membership in a racist political party; and perceived affiliation with the Communist Party. I asked what was wrong with these exclusions and whether they differed from doxing and shaming sexual harassers during the #MeToo era.

Boycotting anti-Zionist students is corrupting, seeking to entice them to abandon their principles for money. It also seeks to punish people who might not be wrongdoers. Even if you think they are wrongdoers, the boycott embraces norms that might spread to punish non-culpable people and undermine cooperation. Similar arguments condemn the firing of Gina Carano, Anna Netrebko, the British National Party employee, and those who celebrated Charlie Kirk’s death or criticized him after he was killed.

The #MeToo movement was different. Sexual harassers deserve to be punished, and legal rules specifying what constitutes harassment help limit the punishment to wrongful harassers. Moreover, because sexual harassment likely does not represent the deeply held views of harassers, it does not threaten integrity, speech, or polarization in the same way as ideological employment exclusion.

The arguments marshaled against these examples do not apply to employers who have good reasons for ideological employment denial that cannot be pursued in other ways. Organizations devoted to specific missions are the most obvious.

D. But What About the Nazis?

Some readers might think we should generally disallow ideological employment denial, but we should allow employers to exclude people who express hatred toward groups based on race, religion, and sex. They might contend that all my arguments lose force when applied to people who express hate. Such individuals do not deserve respect, so we do not owe them restraint from corrupt pressures or protection from insulting demands for non-complicity. They deserve punishment, so we should feel free to harm them through job denial for their culpable speech. Their presence in the workplace will likely undermine efforts to foster respect and cooperation through workplace integration. They will likely tarnish employer reputations and mistreat coworkers, which provides employers with sound moral and business reasons to exclude them.

This position, embraced in much of Europe, has evident attractions. However, we should resist it for several reasons, especially in the U.S. First, I disagree with the claim that we can withhold respectful cooperation from people with unreasonable views. We need not offer them reasons they can accept if they are unwilling to seek reasonable terms of cooperation. However, we must still respect their rights and cooperate with them on terms a reasonable person can accept.¹²² We fail to respect their rights and cooperate if we try to corrupt them or demand that they accept denigrating reasons for our actions.

Second, as noted above, we should not trust employers or the government to pick which views are so heinous that we will punish their expression through employment discrimination. The likely targets will not just be Nazis (and might not even include them). If progressives are in power, those punished might include people who oppose abortion rights or same-sex marriage or who embrace traditional roles for women. If the right is in power, targets might include people who favor abortion rights, gender-affirming care for transgender children, or anything related to DEI. If power is divided, we may see a patchwork of protections in red and blue states, creating even more incentives for residential segregation by ideology, mutual distrust, and social pressure used as a tool for retaliation. Moreover, it is unclear whether punishing purveyors of hate is the most effective way to combat its spread. It might merely fuel such movements’ feelings of isolation and persecution.

Third, as noted earlier, a law banning employment exclusion based on ideology for everyone except Nazis (or hate speech, or harmful speech, however defined) would likely be unconstitutional in the U.S. If so, we must choose between offering no protection against ideological employment denial and offering protection that extends to Nazis. Vulnerable people who hold views that we should respect far outnumber people with hate-based views. We should protect them even at the cost of helping a few Nazis.

Finally, people can work cooperatively even knowing that some of their coworkers hold views that express contempt for their values. We work with people whose religious views include predicting our eternal damnation, who believe our attitudes toward abortion condone murder or oppression, who think our views about merit show us to be racists, and who think we recently voted for a tyrant. Justices Scalia and Ginsburg worked together and formed a friendship, even though his religion might have characterized her as having spent a career supporting the murder of babies. At the same time, her feminist commitments might have portrayed him as devoted to ideals that oppress women. We should not presume that some subset of people with views we find most hateful will misbehave or undermine efforts at peaceful coexistence, or that we cannot find ways to coexist in proximity. Rather than assume cooperation is impossible, we should try working together.

99 S. Cal. L. Rev. 1

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Scott Altman*

*Virginia S. & Fred H. Bice Professor of Law, University of Southern California Gould School of Law. For helpful comments, I thank Catherine Fisk, Felipe Jimenez, Greg Keating, Dan Klerman, George Letsas, Erin Miller, Alain Pottage, Marcela Prieto, Daria Roithmayr, Irit Samet, Mike Selmi, Amy Sepinwall, Mike Simkovic, Danny Sokol, Raphaële Xenidis, and participants at the Sciences Po Law School Faculty Colloquium.

The Modern American Law of Race by David E. Bernstein

August 2021March 2022Southern California Law Review Admin

Article | Anti-discrimination Law
The Modern American Law of Race
by David E. Bernstein*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 171 (2021)

Keywords: Anti-discrimination Law, Public Policy

Most Americans believe that a person’s ethnic or racial identity is currently a matter of self-identification in the United States, but that is not entirely true. Government agencies and courts have established rules for what makes someone African American, Asian, Hispanic, Native American, or white, and for how one proves that one meets the relevant criteria.1 One can get a sense of the scope of these rules by considering how authorities would resolve some recent public controversies over individuals’ racial and ethnic identities.

For example, is golf star Tiger Woods, who calls himself “Cablinasian,” legally classified as Asian based on his predominant ethnic origin,2 African American based on his appearance and the principle of hypo-descent,3 or something else? Until 2019, in Washington State, a government employee would have determined Woods’ ethnic status by looking at his picture.4 Under federal law, Woods could claim Asian American or African American status based on his partial Asian and African ancestry, but he would need to affirm that he holds himself out as a member of the group.5 Whether identifying as “Cablinasian” counts as holding oneself out as Black or Asian is not clear. To successfully claim Native American status based on his Native American great-grandparent, Woods would generally need to show membership in a federally recognized tribe.6 There is, of course, no official Cablinasian category, nor could Woods claim a Thai or Chinese identity separate from the general Asian category.

Is George Zimmerman, charged with murder—and ultimately acquitted by a jury—in the controversial shooting of Trayvon Martin, best described as Hispanic, half-Hispanic, mixed-race, white Hispanic, or something else?7 With a Peruvian mother, assuming he self-identifies as Hispanic, Zimmerman likely qualifies as Hispanic under every extant relevant federal and state law, unless, perhaps, his mother’s ancestors immigrated to Peru from a non-Spanish-speaking country.8 Some government agencies might also question Zimmerman’s Hispanic-ness based on his German-sounding last name and his (arguably) white appearance;9 some agencies would require him to present affirmative evidence that he considers himself, and is considered by others, to be Hispanic.10

Whether Zimmerman could successfully claim African American status based on his mother’s purported partial African ancestry is less clear.11 Federal law suggests that any amount of African ancestry is sufficient to qualify someone as African American,12 but there is recent judicial precedent to the contrary.13 Some states rely on the National Minority Supplier Development Council (“NMSDC”) for racial and ethnic classification, and the NMSDC requires that a person be one-quarter African American to claim that status.14 Federal agencies would likely accept Zimmerman’s claim of African American status based on an affidavit from him, though he would have to affirm that he holds himself out as African American.15 The NMSDC would demand documentation, such as a driver’s license or birth certificate, listing Zimmerman’s race as African American.16 California, meanwhile, would require birth certificates specifying race from either Zimmerman, his parents, or his grandparents, or three letters from certified ethnic organizations attesting to Zimmerman’s group membership.17 There is no official mixed-race status to claim in any jurisdiction, though the Department of Education now has a category in its statistics for children whose parents say the children belong in two or more racial categories.

Was former NAACP official Rachel Dolezal, the offspring of two parents of European origin, pretending to be Black by identifying as an African American woman? Or was it acceptable for her to adopt an African American identity, given that race is a socially constructed concept and she sincerely adopted an African American identity?18 Under federal and the vast majority of state laws, Dolezal’s lack of African ancestry means that she would be classified as white.19 In Massachusetts, however, the fact that she held herself out as a Black woman and others treated her as such would allow her to classify herself as Black in some contexts.20

Was Senator Elizabeth Warren justified in identifying herself as Native American based on family lore that she has Native American ancestry,21 or was she engaging in “ethnic fraud”?22 Under federal law, Warren’s lack of membership in a recognized tribe means that she is not Native American for most purposes.23 Warren also likely does not come within the definition of “Indian” in statutes that don’t require tribal membership.24 For statistical purposes, including for enforcement of antidiscrimination legislation, the government includes individuals with Native American ancestry who “maintain[] cultural identification through . . . community recognition.”25 In some states, family lore plus self-identification is likely enough for the government to recognize someone as Native American.26

Some of Vice President Kamala Harris’s political opponents have questioned her Black identity. 27 Harris, the child of an Indian immigrant mother and a father of mixed-race heritage from Jamaica, has identified as Black her entire adult life (including attending a historically Black university, Howard University), is identified by others as such, and has African ancestry.28 Given those facts, legal authorities throughout the United States would recognize her as Black and/or African American.

The controversies discussed above were debated in the court of public opinion; no courts or regulatory bodies were asked to rule on the ethnic or racial identity of any of these individuals. Most Americans undoubtedly prefer it that way, understandably tending to blanch at the idea of having the government, at any level, dictate the boundaries of ethnic identity.29 Such determinations are reminiscent not only of Nazi Germany’s and South Africa’s racial obsessions,30 but of America’s sordid past.31 Not long ago, Southern states divided mixed-race individuals into categories such as “octoroons” and “quadroons” to determine whether they were “white” or “colored” by law.32 The U.S. government, meanwhile, engaged in pseudoscience and pseudo-anthropology to determine which people from Asia counted as “Asians” and were thus not legally eligible to immigrate to the United States or become naturalized citizens, and which people from Asia were sufficiently “white” or “Caucasian” to be classified as such.33

Despite Americans’ understandable modern squeamishness at official racial categorization, racial and ethnic classifications are ubiquitous in American life. Applying for a job, a mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is white, Hispanic, Asian, African American, or Native American, among other extant classifications. 34

Those seeking information about individuals’ ethnicity typically rely on self-identification and voluntary compliance with general norms regarding such identification.35 As noted, however, legal rules dictate whether someone may claim “minority” status in some contexts. This should not be surprising, given that concrete benefits sometimes accompany one’s identification as a member of a racial or ethnic minority group. In the past, given Jim Crow laws, immigration and naturalization restrictions, and other forms of de jure and de facto race discrimination, it was generally considered beneficial to claim a white identity. Today, while invidious discrimination still presents impediments to minorities, claiming a non-white identity can make one eligible for affirmative action preferences.36 While university affirmative action policies receive far more public attention, there is a strong incentive to claim minority status to be eligible for racial and ethnic preferences that influence the award of hundreds of billions of dollars annually in government contracts.37

This Article addresses two distinct but related issues. This Article first discusses the categories that federal and state governments use to define the “official” racial and ethnic minorities in the United States for data gathering, civil rights enforcement, and affirmative action purposes; the boundaries of those categories; and how those categories came to be. The second issue addressed by this Article is what evidence individuals must provide to demonstrate membership in these categories, and how modern courts and agencies have adjudicated questions of racial or ethnic identity when an individual’s claim to minority status has been contested.

Most Americans take the categories of “African American,” “Native American,” “Asian American,” and “Hispanic” for granted.38 Yet there is no inherent logic to using these categories, nor to their precise scope,39 and the same, for that matter, is true of the category “[w]hite.”40 As a federal judge has pointed out, the categories are not consistent with one another: “one group [African Americans] is defined by race, another [Hispanics] by culture, another [Asians] by country of origin and another [Native Americans] by blood.”41

The Hispanic category generally includes everyone from Spanish immigrants (including people whose first language is Basque or Catalan, but not Spanish) to Cuban Americans of mixed European extraction to Puerto Ricans of mixed African, European, and indigenous heritage to individuals fully descended from indigenous Mexicans.42 Members of the disparate groups that fall into the “Hispanic” or “Latino” category often self-identify as white,43 often feel more connected to the general white population than to other Spanish-language national-origin groups, and sometimes diverge from members of other Hispanic demographic groups in political outlook as much or more than from the general white population.44 Moreover, “census data show substantial differences in levels of income and educational attainment among the national origin groups in which data about ‘Hispanics’ are usually classified.”45 Not all Hispanics, meanwhile, consider themselves to be part of a minority group, and “some who claim minority status for themselves would reject [that status] for . . . others” (for example, they might “reject it for well-educated professionals who immigrate from South American countries” and who are considered white in their home countries).46 People of Portuguese or Brazilian ancestry, who are not of Spanish culture or origin, are nevertheless sometimes defined as Hispanic by legislative or administrative fiat.

The Asian American category includes people descended from wildly disparate national groups,47 who have dissimilar physical features, practice different religions,48 speak different languages, vary dramatically in culture,49 and sometimes have long histories of conflict with one another.50 Various subgroups of Asian Americans have differing levels of average socioeconomic success in the United States51—Indian Americans, for example, on average have significantly higher-than-average incomes and levels of education, while on average the incomes of Hmong and Burmese Americans are well-below the American mean.52 Korean Americans have the highest rate of business formation for any ethnic group in the United States, while Laotians have the lowest.53 The Asian category meanwhile excludes people from the Western part of Asia, such as Muslim Americans of Yemeni origin, who may face discrimination based on skin color (often dark), religion, and Arab ethnicity.54 Only a minority of people in the Asian category identify with the “Asian” or “Asian American” labels.55

Under most federal rules,56 the Native American category includes someone of remote Indian ancestry who has inherited tribal membership, while excluding some people with much closer genetic and cultural connections to the Native American community who are not tribal members.57 The question of whether the category of African American should sometimes be limited to descendants of American slaves or include African and Caribbean immigrants and their descendants is increasingly debated, as is the question of whether multi-racial individuals with a non- Black-identified parent should be included in the African American category.58

Classification rules generally were not made by Congress or state legislatures, where they would have been subject to public discussion and debate, but by administrative agencies. These agencies have used their authority to determine which groups are covered by classification rules, as well as how to prove membership in those groups. The modern history of racial and ethnic categorization by the government is therefore an example of, among other things, administrative constitutionalism,59 with the bureaucracy creating important baseline rules for society with little input from elected officials and negligible public debate.

Part I of this Article addresses the origins and development of modern racial categorizations in the United States. These categories arose from categories used for federal antidiscrimination enforcement and affirmative action policies. The federal government has never provided a coherent or comprehensive explanation for why some minorities are deemed to be “official” minority groups and others are not, or for why the various categories have the precise, and often seemingly arbitrary, boundaries that they do.

As documented in Part I of this Article, the scope and contours of official minority status have arisen from a combination of groups being deemed analogous to African Americans in facing race discrimination; bureaucratic inertia; lobbying campaigns; political calculations by government officials; a failure to anticipate future immigration patterns; and happenstance. It was far from inevitable, for example, that Americans with ancestry in the Indian subcontinent or the Iberian peninsula would gain official minority status, but that Arab, Greek, Iranian, Italian, Jewish, and Polish Americans would not.

Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states’ Minority Business Enterprise (“MBE”) programs. Federal law requires states that accept federal transportation funds—that is, all states—to have rules for certifying firms owned by members of designated minority groups as MBEs. MBEs are eligible for presumptive status as Disadvantaged Business Enterprises (“DBEs”) for federally funded contracts. States are permitted to use federal standards for this purpose, but may also create and enforce their own standards, both for participation in federally funded projects and for state purposes. Various states’ rules diverge from federal law in determining who is deemed African American, Asian, Hispanic, or Native American. For example, unlike under federal law, some states exclude persons with Portuguese and Spanish ancestry from the Hispanic category. Other states delegate authority to the

NMSDC to use its own idiosyncratic standards to certify minority status.

This Article next turns to the question of what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are a matter of self-definition based on informal norms. For federal purposes, this is largely true. Most federal programs require only a signed affidavit attesting that the petitioner for minority status is a member of the claimed group and holds himself or herself out as such.60

States, however, often require documentation before granting minority status. This documentation requirement can be met by providing an official document listing one’s race, providing letters of support from ethnic organizations, or relying on certification by the NMSDC. Part III of this Article discusses the evidence various states demand to support a claim that a petitioner is a member of a designated group.

Perhaps surprisingly, challenges to the under- or overinclusiveness of a governmental definition of the scope of particular racial or ethnic categories are rare. Part IV of this Article discusses the only four such cases this author found. In the first case, the Eleventh Circuit Court of Appeals held that, judged by the rational basis standard, a city’s Hispanic category was neither over- nor underinclusive for equal protection purposes.61 In the second case, the Second Circuit, also applying the rational basis test, held that it was not unconstitutionally arbitrary for New York State to exclude companies owned by people from Spain from its Hispanic MBE category, even though the federal government includes such companies.62 In the third case, the Seventh Circuit held that it was unconstitutionally overinclusive to include immigrants from Spain and Portugal and their descendants in the Hispanic category in Cook County, Illinois’ MBE Program.63 In the fourth case, the Sixth Circuit held that Ohio’s MBE law was both overinclusive in including groups that had not been victims of longstanding discrimination in Ohio, and underinclusive in not including groups that had been.64

Conventional wisdom is that there has been only one case in which an individual’s claim to minority status has been adjudicated in an affirmative action context. The case involved white firefighter brothers named Malone who claimed African American status based on dubious evidence that they had an African American great-grandmother.65 It turns out, however, that the Malone case is the tip of a (small) iceberg.

Part V of this Article reviews cases in which the minority status of a petitioner seeking MBE status for his or her company has been adjudicated. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts. Part VI of this Article turns from racial categorization in the MBE context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.66

Part VII of this Article notes the existence of laws governing racial identity that are beyond the scope of this Article, in particular laws defining whom the federal government classifies as being an “Indian.”

This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of those officially classified as members of racial and ethnic minority groups.67 Given high rates of interracial marriage among other minority groups68 and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them in a given circumstance, the percentage of non-African American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization. The Conclusion suggests several ways to handle these strains.

*. University Professor, Antonin Scalia Law School, and Executive Director, Liberty & Law Center; B.A. 1988, Brandeis University; J.D. 1991, Yale Law School. For their comments, suggestions, and research leads, the author thanks Charles Barzun, Roger Clegg, Jonathan Bean, George La Noue, Peter Schuck, Michael Rosman, John Skrentny, and John Sullivan. The author benefited from feedback received at faculty workshops at the Antonin Scalia Law School and Northwestern University School of Law. Emily Yu provided excellent research assistance.

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Whose Bathroom Is It, Anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law – Note by Allison Bader

May 2018August 2018Southern California Law Review Admin

From Volume 91, Number 4 (May 2018)
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Whose Bathroom is it, anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law

Allison Bader [*]

TABLE OF CONTENTS

INTRODUCTION

I. Background

A. Defining Transgender

B. History of Transgender Status & Rights in the United States

C. Transgender Bathroom Access in the United States

D. Transgender Bathroom Access in the Workplace

II. Federal Anti-Discrimination Laws and Transgender Rights

A. Title VII of the Civil Rights Act of 1964

B. Comparison to Transgender Status Protections under Other Federal Laws

III. Executive Branch Incoherence on Transgender Protections

A. Trump Administration Changes Direction

B. Federal Agencies in Conflict

IV. Federal Courts’ Approaches to Gender Identity Discrimination and Transgender Bathroom
Access

A. Circuit Split in Title VII Interpretation

B. Cases Interpreting Title VII to Protect Transgender
Status

C. Federal Cases Interpreting Title VII to Not Encompass Gender Identity Discrimination

D. Federal Cases Addressing Bathroom Access

V. Arguments for Competing Interpretations of Title VII as Pertaining to Transgender Bathroom
Access

A. Supporters of The DOJ’s Position on Transgender Bathroom Access

B. Supporters of the EEOC’s Position on Transgender Bathroom Access

VI. Analysis

A. Interpretation of “Sex” in Title VII

B. Equal Bathroom Access and Discrimination

C. Policy Implications of Bathroom Access

Conclusion

INTRODUCTION

In many ways, Michael C. Hughes is an average American family man. He is a middle-aged father of four from Rochester, Minnesota. He has been married to his wife for twelve years. He has a broad, muscular frame and is partial to cowboy hats and wide belt buckles. But Hughes is unlike the average American family man in one fundamental way: he was born biologically female.[1] Hughes is one of the more than 1.4 million transgender adults in the United States,[2] a small but increasingly visible group of people who are currently facing a unique legal battle to use restrooms and single-sex facilities that align with their gender identity.[3]

Hughes garnered publicity with a viral photo taken in a public restroom, in protest of “bathroom bills”—laws that require Hughes to use women’s restrooms and facilities, despite his gender identity.[4] “Bathroom bill” is the common name for legislation that prohibits individuals from using bathrooms (or other private, single-sex facilities like locker rooms) that do not match their biological sex or sex markers on their identification documents, depending on the bill.[5] Posing in front of the bathroom mirror in a women’s restroom, as female patrons look on questioningly, Hughes “presents” as a male—making him appear out of place in the restroom that nonetheless matches his biological sex. Hughes’ photo and its accompanying hashtag, “#WeJustNeedtoPee,” went viral in 2016, reflecting Americans’ rapt attention on transgender issues.[6]

Hughes’ photo was a direct reaction to North Carolina’s Public Facilities Privacy & Security Act, or House Bill 2 (“H.B. 2”), which to date remains the only bathroom bill to successfully pass a state legislature.[7] H.B. 2 was enacted shortly after the passage of Ordinance 7056 in Charlotte, North Carolina, which prohibited discrimination on the basis of gender identity in Charlotte’s public accommodations and, in doing so, permitted transgender people to use the restrooms of their choosing.[8] H.B. 2 prohibited individuals from using bathrooms and changing facilities in government buildings—including schools, government agencies, and courthouses—that did not correspond with the sex listed on their birth certificates.[9] The bill also overturned Charlotte Ordinance 7056 and prohibited municipalities from enacting their own anti-discrimination policies.[10] Many transgender rights activists argued that H.B. 2 was the most anti-LGBT piece of legislation then operating in the United States.[11] It launched a series of lawsuits, as proponents and opponents of the bill prepared to battle over the application and extent of transgender rights.[12] It also faced severe pushback and resulted in harm to North Carolina’s economy and public image.[13] On March 30, 2017, a year after H.B. 2’s passage, both the state House and Senate partially overturned the bill, doing away with the prohibition on transgender bathroom access.[14]

Although there are currently no state laws prohibiting transgender individuals from using the bathroom of their choice, transgender bathroom access remains an important issue for two reasons. First, numerous bathroom bills are currently pending: in the 2017 legislative session alone, sixteen states [15] considered legislation that would restrict transgender access to bathrooms, locker rooms, and other sex-segregated facilities that match their assigned sex at birth or “biological sex.”[16] Second, private employers may adopt policies or practices preventing their transgender employees from accessing bathrooms and other single-sex facilities corresponding to their gender identity. This Note will focus on this second issue, dealing specifically with the legality of private employers’ policies restricting transgender bathroom access.

While transgender people have become more prominent in mainstream America over the last ten years, their status under the law is still an open question in many areas. This includes whether transgender employees are legally entitled to access bathrooms and single-sex facilities matching their gender identity in the workplace. The answer to this question is far from clear: in the absence of explicit federal protections against transgender discrimination, advocates and supporters look to Title VII of the Civil Rights Act of 1964 (“Title VII”), the main source of federal employment anti-discrimination law. Title VII prohibits discrimination on the basis of “sex” in employment and thus potentially provides protection for transgender persons against discrimination in the workplace.[17]

Multiple federal agencies, including the Equal Employment Opportunity Commission (“EEOC”), an independent federal agency that oversees enforcement of Title VII, have issued guidances that affirm these federal laws protect transgender employees from discrimination.[18] The Obama administration also embraced this view.[19] And multiple federal courts have found federal laws prohibiting sex discrimination also cover discrimination on the basis of transgender status, including the Courts of Appeals for the First, Sixth, Ninth, and Eleventh Circuits and lower courts in the second and fifth circuits. However, some argue that these agencies, the Obama administration, and the courts overstepped their sphere of authority and argue that Title VII was never intended to (and thus should not) offer protection for transgender status.[20] This includes Attorney General Jeff Sessions, who has helped steer the Trump-era Department of Justice in the direction of rolling back administrative policies that offered transgender employees protections in the workplace.[21]

This question is hotly debated, and both sides of the aisle have made public policy arguments in support of their interpretation of the law. Proponents of these policies cite privacy concerns, employee comfort, and the protection of women and children as the motivation for these policies.[22] On the other hand, opponents argue these concerns are at best a myth and at worst a thinly veiled pretext for denying transgender people equal rights.[23] Moreover, they claim that not allowing transgender employees to access bathrooms corresponding to their gender identity poses serious privacy and safety concerns for those employees.[24]

This Note will critically analyze arguments on both sides. Ultimately, this Note argues that Title VII should be read to protect transgender status and gender identity from discrimination on the basis of sex. Thus, employer policies that prevent transgender employees from using bathrooms matching their gender identity violate the provisions of Title VII that protect individuals from discrimination on the basis of sex. When this issue eventually goes to the Supreme Court, the Court should affirm that transgender people are protected from discrimination and disparate treatment in their employment under federal law and that denying them access to bathrooms matching their gender identity in the workplace is a form of discrimination.

This Note will proceed in six parts. Part I defines terms and describes the history of transgender status and bathroom access under the law. Part II provides background information on Title VII and discusses how other federal laws protecting against discrimination on the basis of sex, like Title IX, have been interpreted with regard to transgender status and bathroom access. Part III discusses the disjointed stance taken by the executive branch, including the postures of the Trump administration and administrative agencies. Part IV outlines various federal courts’ approaches to transgender rights under Title VII, including bathroom access. Part V introduces the various arguments for and against reading Title VII as prohibiting discrimination on the basis of transgender status. Finally, Part VI argues that federal law protects transgender people from discrimination on the basis of their gender identity in employment and prohibits private employer policies that restrict transgender bathroom access.

I. Background

A. Defining Transgender

Before diving into the substance of the debate over transgender discrimination’s legal protections, it is helpful to define the terms that will be used throughout this Note and provide brief information on transgender individuals. Transgender people (or “transpersons”) identify with a gender that does not correspond to their biological sex as assigned at birth.[25] Most commonly, transgender people identify with the opposite sex from what they were assigned at birth.[26] For example, a person who was born biologically male but identifies as a female is referred to as a trans–woman, and a person who was born biologically female but identifies as a male is called a trans–man. However, the term transgender may also apply to people who do not exclusively identify as either male or female—for example, genderfluid, genderqueer, and agender people, and those who identify with a third gender outside of the male-female binary.[27] The term transgender does not conventionally apply to cross-dressers—individuals who derive pleasure or satisfaction from dressing as the opposite sex—unless those individuals have gender identities that do not match their sex at birth.[28] Finally, it is a common misconception that being transgender relates in some way to sexual orientation. However, transgender status is completely separate from sexual orientation, and transgender individuals can be straight, gay, lesbian, bisexual, and so on.[29]

A “gender transition” is the process by which transgender people begin “presenting” as their gender identity (that is, taking steps to outwardly appear as the sex matching their gender identity and identifying themselves as such). This process is sometimes coupled with undergoing medical treatments or procedures to change their biological sex.[30] These medical treatments may include the following: hormone replacement treatment; breast reduction or augmentation; and sexual reassignment surgery, which involves reconstructing the genitals to match those of the biological sex that corresponds with the individual’s gender identity.[31] Not all transgender people undergo procedures or medical treatment in their transitions, and the desire or intent to have medical procedures is not a requirement for being transgender. When a transgender person physically appears as the sex corresponding with their gender identity to the public at large, this is called “passing.”[32]

Transgender status is no longer considered a mental health disorder by the American Diagnostic and Statistical Manual of Mental Disorders (“DSM”), though it once was.[33] However, the DSM and many mental health professionals recognize “gender dysphoria”—the discomfort and distress associated with one’s assigned gender role—as a mental health disorder in need of treatment.[34] Indeed, treatment plans can include “counseling, cross-sex hormones, puberty suppression and gender reassignment surgery.”[35]

It is important to note that the word “transsexual,” which was previously used to describe transpeople, is disfavored by the transgender community [36] and will not be used in this Note.

B. History of Transgender Status & Rights in the United States

Transgender status and the concept of gender identity is not a recent phenomenon. Individuals from many cultures over time have identified with genders that do not match their biological sex.[37] For example, many Native American tribes recognized a third gender, which embraced biological males who identified with a gender separate from male and female.[38] These individuals were sometimes referred to as “two-spirit” people.[39] According to some scholars, at least 155 Native American tribes historically accepted these two-spirit people who existed outside of the gender binary.[40] In addition, during the American Civil War, many biological women disguised their sex to fight as soldiers; although most who survived presumably lived as women after the war, some lived out the rest of their lives as men.[41] The most famous example, Albert Cashier, “served in the army as a man, lived his life as [a] man and was buried at 71 with full military honors in 1915, as a man,” despite being biologically female.[42] Almost a century after the Civil War, in 1951, Christine Jorgensen became famous for undergoing the first sex reassignment surgery that was widely publicized in the United States, bringing an early transition to light.[43]

But while people have long identified as transgender, at least in effect if not in name, there is no question that transgender people and the legal questions surrounding their rights have become much more visible in the last decade. Transgender celebrities like Chaz Bono (formerly Chastity Bono), the son of musicians Cher and Sonny Bono, and Matrix directors Lana and Lilly Wachowski (formerly Larry and Andrew Wachowski) brought media attention to transgender people by publicly coming out in 2009, 2010, and 2016, respectively.[44] In 2014, Laverne Cox, a transgender woman and star of the Netflix hit show “Orange is the New Black,” became the first openly transgender person to be nominated for an Emmy in an acting category for her portrayal of the transgender inmate Sophia Burset.[45] In the same year, Ms. Cox was on the cover of Time, stirring up conversations about transgender people and gender identity at dinner tables across the country.[46]

Finally came a tipping point for transgender visibility: Olympic gold medal-winning decathlete Caitlyn Jenner (formerly Bruce Jenner) publicly came out as a trans–woman in April 2015.[47] Ms. Jenner’s coming out was, in many ways, the perfect vehicle for bringing transgender issues to light. To older generations, the 67-year-old was an American hero and phenom who brought home gold in the 1974 Olympics.[48] To younger generations, Jenner was the stepfather of Kim Kardashian and member of the Kardashian clan, one of America’s most famous families. As arguably the most famous openly transgender person in the world, Ms. Jenner’s public coming-out and televised transition firmly solidified transgender people as prominent players in media and entertainment.

Most recently, in a historic moment for transgender representation in government, Virginia House of Delegates candidate Danica Roem became the first openly transgender woman to win a seat in a state legislature in November 2017.[49] Roem’s win was particularly notable because she unseated incumbent Republican candidate Robert G. Marshall, the author of Virginia’s ultimately unsuccessful bathroom bill.

Yet despite these changes, the legal status of transgender people and the rights they are afforded vary widely across the country and depend on the laws enacted within each state. Though the 14th Amendment includes a general guarantee of equal protection,[50] transgender people are not explicitly a protected class under federal law.[51] Congress has repeatedly tried, and failed, to pass the Employment Non-Discrimination Act (“ENDA”), a law that would include explicit protections against both sexual orientation and gender identity discrimination in the workplace.[52] Given the current makeup of the Republican-controlled Congress, it seems unlikely the ENDA or a similar law will pass anytime soon.[53] Thus, there are no over-arching federal laws offering employees protection from discrimination on the basis of transgender status. As of January 2017, twenty-one states and at least 225 local jurisdictions had adopted legislation specifically prohibiting discrimination based on gender identity or transgender status.[54] These protections variably include prohibitions on discrimination in housing, employment, and public accommodations.[55]

Nevertheless, many questions remain for transgender people in the remaining states, who face potential discrimination from employers, schools, and the state itself without recourse. This is especially true since the Supreme Court has not addressed whether existing federal laws, like Title VII, apply to transgender status or prevent discrimination on the basis of gender identity.[56] Throughout history, transgender people have faced, and continue to face, discrimination in a variety of areas including: employment, housing, public accommodations, education, health, marriage, parenting, and adoption.[57] Transgender people are also predisposed to higher levels of depression and suicide, face substantially higher homelessness rates, and are more often victims of violent crimes than their non-transgender peers.[58] Unfortunately, transgender people do not fare any better in the workplace; 47% of those surveyed by the National Transgender Discrimination Survey reported experiencing adverse job outcomes as a result of their transgender status and 90% reported experiencing harassment, mistreatment, or discrimination on the job.[59]

C. Transgender Bathroom Access in the United States

The laws surrounding transgender peoples’ access to restrooms and other single-sex facilities matching their gender identity is equally muddy. In some states, using a restroom that does not match an individual’s biological sex or “official” state-recognized sex found on identification documents is not a criminal act.[60] Other states have gone further and passed non-discrimination laws that specifically give individuals the right to use single-sex restrooms and other gendered public accommodations that conform with their gender identity.[61] In these states, there are no legal repercussions for transgender people who use restrooms or facilities that do not match their biological sex or identification markers.

In other states, using a public restroom that does not correspond with an individual’s biological or state-recognized sex is quasi-illegal.[62] This means that if an individual is told to leave a restroom by a security guard or police officer and refuses, they may be cited or arrested for disturbing the peace.

At the other end of the spectrum, some states have passed or considered bathroom bills that specifically require individuals to use restrooms and other single-sex facilities that match the sex listed on their birth certificates.[63] In these jurisdictions, transgender people must use facilities corresponding to the sex that is listed on their IDs, use gender neutral or “family” restrooms, or use restrooms specifically designated for transgender people.[64] While North Carolina remains the only state to pass a bathroom bill, Florida, Arizona, Texas, and Kentucky are among states that have considered such laws.[65]

Finally, some jurisdictions have taken a different approach to resolve this problem, addressing the facilities themselves. For example, California passed a law in September 2016 that required all single-occupancy restrooms to be gender-neutral.[66] Although this law is limited to single-occupancy restrooms and does not apply to many restrooms in the state, it is one of the more progressive approaches taken by a state. Vermont passed a similar law on May 11, 2018.[67] As of May 2018, no other states had passed similar legislation.

D. Transgender Bathroom Access in the Workplace

Additional legal questions are implicated when examining transgender bathroom access in the employment sphere. Without the passage of an amendment to Title VII or clarification from the Supreme Court, it is unclear whether the prohibition on “sex” discrimination in the workplace applies to discrimination on the basis of transgender status or gender identity. If it does apply to such discrimination, bathroom bills restricting transgender access to gender identity-affirming facilities would violate federal law. Moreover, this could make private employers liable for discrimination under Title VII if they refuse to allow their transgender employees to access facilities matching their gender identities.

However, even if transgender status was covered by the word “sex” in Title VII, it is unclear whether prohibiting employees from using restrooms or other single-sex facilities that do not correspond with their biological sex is discriminatory. The argument has been made that employers enforcing such rules would not be discriminating on the basis of sex because they would be allowing all employees to have equal access to the restroom or single-sex facility that matches that individual’s biological sex.[68] Of course, opponents of bathroom bills and other restrictions on transgender bathroom access argue that such actions are discriminatory because they allow cisgender employees to access bathrooms matching their gender identities, but not transgender employees, resulting in disparate treatment.[69]

There is an additional wrinkle: the Occupational Safety and Health Administration (“OSHA”), an agency of the United States Department of Labor, views bathroom access as a basic condition of employment and “requires employers to provide their employees with toilet facilities.”[70] For this reason, OSHA prohibits employers from putting “unreasonable restrictions” on employees’ restroom access.[71] To the extent that requiring a transgender employee to use the bathroom that corresponds with their biological sex may be interpreted to “unreasonably restrict” that individual’s access to employer restrooms, employers may be legally required to offer transgender employees an alternative.[72] This may feasibly include access to either a private or gender-neutral bathroom or to a bathroom matching that individual’s gender identity.

II. Federal Anti-Discrimination Laws and Transgender Rights

A. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is the fundamental federal employment discrimination law in the United States. Title VII states that an employer covered under the act may not discriminate against employees on the basis of their race, color, religion, sex, or national origin.[73] Specifically, Title VII prohibits discrimination on the basis of these protected categories in the terms, conditions, and privileges of employment. Thus, employees do not have a claim for disparate treatment under Title VII, unless their employer took an adverse employment action against them because of their race, color, religion, sex, or national origin. Although Title VII breaks up employers into two categories, federal employers and private sector employers, and addresses them separately, the laws are analogous in their prohibition of discrimination on the basis of the defined protected characteristics.[74] The Equal Employment Opportunity Commission (“EEOC”) is tasked with interpreting and enforcing Title VII.

What is covered under “sex” discrimination has long been a subject for debate and has been interpreted to cover an expanding set of actions over time.[75] When the Civil Rights Act of 1964 was originally proposed, it did not include sex as one of the characteristics it would protect from employment discrimination.[76] At the time, the concept of prohibiting employers from discriminating against female employees (who were deemed to be covered by this protection) was so radical that it almost prevented the Civil Rights Act from being passed.[77] In fact, some argue that staunch civil rights opponent, Representative Howard W. Smith (Virginia), proposed that the bill include sex “to prevent discrimination against another minority group, the women,” in an effort to kill the bill.[78] Nonetheless, the Civil Rights Act, with Title VII, was passed.[79] In its early days, the EEOC largely ignored sex as a discrimination category under Title VII and viewed it as a “fluke” that was not intended by the passage of the bill.[80] As protection against sex discrimination has grown to be a critical element of Title VII, however, the slapdash birth of sex as a protected category has made questions of what Congress intended to protect somewhat unclear.

Because Title VII does not define “sex” or make explicit reference to protection for transgender status, it is unclear if discrimination against transgender employees is protected under the law. One of the earliest legal challenges to whether transgender status was a protected characteristic came in 1984, in Ulane v. Eastern Airlines, Inc.[81] In Ulane, a pilot who was born biologically male underwent sex reassignment surgery and began publicly identifying as a woman. She was terminated because of her transition, as the airline argued she would distract her flight crew and prevent them from working in a manner conducive to safety. Ulane subsequently filed a claim with the EEOC for sex discrimination in violation of Title VII. At the trial court level, District Court Judge Grady held for Ulane, finding that Eastern Airlines had discriminated against Ulane on the basis of her transgender status, which was covered as a form of sex discrimination under Title VII.[82] Judge Grady also found that Ulane was discriminated against for being a woman, which was also prohibited by Title VII.[83] In his opinion, Judge Grady relied on scientific information to examine how “sex” could mean more than male or female, including other nuances of sexual identity, such as gender identity.[84] He also rejected the argument that Title VII was not intended to apply to transgender status because “Congress never intended anything one way or the other on the question of whether the term, ‘sex,’ would include transsexuals.”[85] This, in his view, justified a broad understanding of “sex” that included psychological and social understandings.[86] However, Judge Grady’s ruling was reversed on appeal when the Seventh Circuit refused to apply Title VII sex discrimination to Ulane’s case, holding explicitly that: (1) Title VII does not prohibit discrimination against transgender status and (2) Ulane was not a woman under the law.[87]

Although the Supreme Court has never explicitly found that Title VII prohibits transgender discrimination, the Court has held that sex discrimination includes discrimination against gender expression in the form of gender stereotyping.[88] In Price Waterhouse v. Hopkins, the Court used a broad definition of “sex” when it extended Title VII sex discrimination to prohibit the actions of an employer who discriminated against its female employee for dressing and acting overly “masculine.”[89] In that case, Ann Hopkins sued her former employer, the accounting firm Price Waterhouse, after she was denied partnership. Hopkins argued that she faced this adverse employment action because she didn’t match the other partners’ ideas of how a woman should act, speak, and dress.[90] Indeed, representatives of the firm instructed her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[91] The Supreme Court held that the firm discriminated against Hopkins on the basis of her sex when it didn’t offer her partnership because she did not conform to stereotypical ideals of femininity.

Importantly, post-Price Waterhouse, it is unclear whether a sex-stereotyping claim would be successful if an employer could show it took an adverse action against a transgender woman employee, not because she did not dress as a stereotypical man, but because she was transgender. Out of this confusion, some believe Price Waterhouse represents a victory for transgender people, while others believe the holding of the case does not go far enough to protect transgender people from discrimination on the basis of their gender identity as it requires the logical leap that discrimination against transgender individuals is inherently a form of gender stereotyping.[92]

B. Comparison to Transgender Status Protections under Other Federal Laws

Title VII’s anti-discrimination language is most analogous to Title IX of the Education Amendments of 1972, which similarly prohibits discrimination on the basis of “sex,” though in schools as opposed to the workplace.[93] The laws not only share similar language, but also similar controversy regarding the breadth of their anti-discrimination coverage. Indeed, a debate currently rages regarding whether transgender students’ bathroom access is protected under Title IX’s sex discrimination prohibition. This question “has roiled the nation, pitting LGBT activists and transgender youth and their parents against those who say privacy and safety are compromised by accommodating transgender youth in school restrooms and locker rooms.”[94]

Taking a side in this debate, numerous state courts have ruled that transgender students have the right to use bathrooms and facilities that match their gender identity. For example, in Doe v. Regional School Unit 26, the Maine Supreme Court ruled that a school discriminated against a female transgender student by denying her access to the women’s restroom because it had effectively treated her differently from other students on the basis of her transgender status.[95] The Colorado Division of Civil Rights came to a similar conclusion in Mathis v. Fountain-Fort Carson School District 8, in which the court ruled that “[b]y not permitting [a student] to use the restroom with which she identifies, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service.”[96]

Federal courts have also grappled with whether Title IX gives transgender students the right to access restrooms and locker rooms that correspond with their gender identity. In 2015, the Fourth Circuit became the first federal Court of Appeals to determine whether Title IX’s prohibition on sex discrimination applies to transgender status in G.G. ex rel. Grimm v. Gloucester County School Board.[97] In G.G., a transgender high school student named Gavin Grimm challenged his school board’s policy that prohibited him from using the boys’ restroom on campus. When Grimm refused to use the girls’ restroom, he was told he could use a unisex restroom that he believed singled him out and humiliated him. Grimm’s case was dismissed at the district court level, but on appeal, the Court of Appeals decided in Grimm’s favor with a tie vote.[98] The school board appealed the decision, and in October of 2016, the Supreme Court granted certiorari, agreeing for the first time to take up the question of Title IX’s application to transgender status and discrimination.[99]

But the Supreme Court withdrew cert in March of 2017, after the Trump administration rescinded guidance from the Obama Administration’s Department of Justice that had advised schools that denying transgender students access to the bathroom of their choice violated Title IX.[100] Because the Fourth Circuit had initially deferred to this guidance in deciding for Grimm, this change in policy sharply changed the question before the Court.[101] In light of this, the Court vacated the Fourth Circuit’s decision and sent it back for reconsideration, where it remains as of May 2018. Had the Supreme Court decided this case, it may have shed some light on the proper interpretation of sex discrimination in Title VII. Unfortunately, without the Supreme Court’s final word, the Title IX question remains muddy.

III. Executive Branch Incoherence on Transgender Protections

A. Trump Administration Changes Direction

Since taking office in January 2017, President Trump’s administration has clearly departed from the pro-LGBT statements he made during his candidacy. This has caused uncertainty over the administration’s future stance on transgender issues. On the campaign trail, Trump made multiple statements that seemed to evince his commitment to LGBT causes. At a 2016 campaign rally, following the tragic mass shooting at the Pulse nightclub in Orlando, Florida, Trump said “[a]s your president, I will do everything in my power to protect our LGBTQ citizens . . . .”[102] At a different event, he held a large pride flag onstage with the words “LGBTs for Trump” written on it.[103]

In April 2017, amidst controversy over North Carolina’s bathroom bill, H.B. 2, then-candidate Trump said in an interview that transgender North Carolinians should be allowed to “use the bathroom they feel is appropriate.”[104] He later doubled down, agreeing that Caitlyn Jenner would be welcome to use any bathroom at Trump Tower if she were to visit.[105] This was in clear contrast to the other Republican presidential candidate front-runner, Ted Cruz, who voiced support for H.B. 2 and bathroom bills in general.[106]

Yet the first year of Trump’s presidency was marked by anti-LGBT policies and stances. As discussed above, in February 2017, the Trump administration rescinded an Obama-era Department of Education guidance that instructed schools to allow transgender students to use bathrooms and locker rooms that match their gender identities.[107] Though some praised the administration for leaving the issue to the states,[108] others argued this move showed “the president’s promise to protect LGBT rights was just empty rhetoric.”[109] Then in July 2017, Trump announced he would reinstate a ban on transgender individuals serving in the military, tweeting that the “military must be focused on decisive and overwhelming . . . victory and cannot be burdened with the tremendous medical costs and disruption that transgender [sic] in the military would entail.”[110] Most recently, in October 2017, Trump’s Justice Department reversed an Obama-era memo that interpreted Title VII to protect transgender employees from discrimination on the basis of their gender identity.[111] In a memo announcing this decision, Attorney General Jeff Sessions argued “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”[112] This was not surprising considering Trump’s Justice Department had previously filed an amicus brief in the Second Circuit Court of Appeals, arguing that Title VII should not be interpreted to prohibit discrimination on the basis of sexual orientation.[113]

Curiously, the Trump administration has continued to support one Obama-era protection against transgender discrimination—Executive Order 13672, which forbids federal government contractors from discrimination against employees on the basis of sexual orientation or gender identity.[114] In a briefing issued in January of 2017, the White House affirmed that the president intended to continue enforcing this executive order, stating “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”[115]

Considering these discrepancies, it is unclear what side the Trump administration will take on transgender rights and issues as they emerge, including the issue of transgender bathroom access. However, the decision to walk back from the Obama administration’s interpretation of Title VII strikes a blow to transgender employees who can no longer rely on the guidance as legal support for their right to use gender-affirming bathrooms at work.

B. Federal Agencies in Conflict

While the position of the Trump administration seems disjointed, the broader stance of the executive branch and the federal agencies within it is a true quagmire. As discussed above, the Department of Justice has interpreted sex discrimination as not encompassing discrimination on the basis of transgender status.[116] In doing so, it has implicitly rejected arguments from transgender employees that being denied access to gender-affirming facilities is unlawful discrimination. But, a separate group of federal agencies has weighed in on the issue in favor of broader transgender rights.[117] These agencies include the EEOC, OSHA, and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”).[118]

The EEOC is the federal agency tasked with enforcing anti-discrimination law in employment;[119] as such, its position on Title VII is persuasive. Though Title VII does not explicitly mention transgender status or gender identity as a basis for discrimination, the EEOC takes the position that such discrimination is covered by the prohibition on sex discrimination.[120] This, the EEOC argues, is because discriminating against employees for being transgender and thus not conforming to the stereotypical behaviors of their biological sex is a form of gender stereotyping, which the Supreme Court held is unlawful sex discrimination.[121] Applying this position, the EEOC has issued numerous opinions in recent years that protect transgender employees from discrimination on the basis of gender identity or transgender status.[122] For example, the EEOC has found the following can constitute a claim for sex discrimination: 1) failing to hire an employee because she is a transgender woman;[123] 2) firing an employee because he is transitioning or plans to transition;[124] and 3) an employer’s intentional misuse of a transgender employee’s preferred name and pronouns.[125] Numerous federal courts have cited the most prominent of these cases, Macy v. Holder.[126] Macy, decided in 2012, was a landmark decision for the EEOC, wherein the agency held that a transgender plaintiff could pursue a Title VII claim against an employer for sex discrimination.[127]

The EEOC has also addressed the issue of bathroom access. In a Fact Sheet titled “Bathroom/Facility Access and Transgender Employees,” the agency advises that denying employees equal access to bathrooms and other facilities that correspond to their gender identity is a form of sex discrimination in violation of Title VII.[128] The Fact Sheet cites to the 2015 EEOC case Lusardi v. McHugh, in which the EEOC ruled as follows:

1. a federal agency that denied an employee equal access to a common bathroom/facility corresponding to the employee’s gender identity discriminated on the basis of sex;

2. the agency could not condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and

3. the agency could not avoid the requirement to provide equal access to a common bathroom/facility by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).[129]

In Lusardi, a transgender woman named Tamara Lusardi brought a claim against her employer, a department of the U.S. Army, for disparate treatment.[130] Lusardi had been instructed to use a single-user restroom called the “executive restroom” instead of the common women’s restroom on the premises, until such a time as she had undergone “surgery,” the extent of which was unspecified.[131] Lusardi used the common women’s restroom on three occasions, when the executive restroom was unavailable; each time, her superior confronted her and told her she must use the executive restroom until she could provide “proof” that she had undergone surgery.[132] The EEOC held that Lusardi was discriminated against because of her transgender status, which was a violation of Title VII.[133] Thus, if the EEOC’s interpretation of Title VII is to be followed, employer restrictions on transgender employees’ access to facilities matching their gender identity constitute unlawful discrimination in violation of federal law.

Although EEOC decisions are not binding on the courts, the agency’s position is persuasive, so courts often give the EEOC some level of deference on issues of employment law.[134] Therefore, courts may adopt the EEOC in their rulings in cases of gender identity discrimination.[135]

Similarly, OSHA has taken the position that employees should be permitted to use the bathroom that corresponds to their gender identities in the workplace.[136] Under OSHA’s Sanitation standard (1910.141), employers are required to provide bathroom facilities to employees to prevent the “adverse health effects that can result if toilets are not available when employees need them.”[137] These health effects can include urinary tract infections, bladder problems, and bowel problems. To this end, OSHA identifies as a “Core Principle” that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”[138] OSHA also advises that transgender employees should not be required to use a “segregated facility,” though they may elect to use one provided for them.[139] Although not interpreting Title VII, OSHA’s position exemplifies the public policy reasons for prohibiting employer policies that restrict access to gender-affirming bathrooms—namely, the health and safety of transgender employees.

Finally, the Department of Labor (“DOL”) has adopted prohibitions on employer policies that restrict access to gender-affirming bathrooms.[140] Per the DOL’s OFCCP, government contractors subject to Executive Order 11246 must allow transgender employees to use bathrooms and other facilities that correspond to their gender identities.[141] Like the OSHA regulations, this prohibition does not interpret Title VII; however, it reflects policy considerations in favor of protecting transgender employees from discrimination.

In sum, there are two clear sides to the executive branch when it comes to interpretations of Title VII. Though the Trump Department of Justice recently rejected its predecessor’s expansive reading of the law as it applies to transgender employees, there is growing momentum toward the EEOC’s position. Time will tell if the Trump administration influences the other agencies to its adopt its position, if the opposite will occur, or if the executive branch schism will simply remain.

IV. Federal Courts’ Approaches to Gender Identity Discrimination and Transgender Bathroom Access

A. Circuit Split in Title VII Interpretation

In the absence of clear federal law prohibiting discrimination on the basis of transgender status, federal courts have grappled with whether Title VII’s prohibition on sex discrimination covers these actions. U.S. appellate courts are currently split on this issue.[142] Two Circuit Courts of Appeals—the Seventh and Tenth Circuits—have issued decisions holding that sex discrimination under Title VII does not include discrimination on the basis of gender identity or transgender status.[143] Four Circuit Courts of Appeals—the First, Sixth, Ninth, and Eleventh Circuits—have held that Title VII sex discrimination does include discrimination on the basis of gender identity.[144] Finally, the remaining five Circuit Courts of Appeals—the Second, Third, Fourth, Fifth, and Eights Circuits—have not addressed this issue, though lower district courts in these circuits have.[145]

B. Cases Interpreting Title VII to Protect Transgender Status

Representing one side of the Circuit Split, the First, Sixth, Ninth, and Eleventh Circuits have held that discrimination on the basis transgender status or gender identity is a form of sex discrimination under Title VII.[146] In general, these cases find that discrimination on the basis of transgender status is a form of sex stereotyping discrimination because discriminating employers are mistreating transgender employees for not conforming to established gender norms.[147]

Examples of this line of reasoning can be found in Sixth Circuit precedents. Following Price Waterhouse, two Sixth Circuit cases, Smith v. City of Salem and Barnes v. City of Cincinnati, used the gender stereotyping doctrine to hold that sex discrimination under Title VII includes discrimination based on gender identity.[148] In Smith, the Sixth Circuit applied Price Waterhouse’s prohibition of sex stereotyping discrimination to a transgender plaintiff for the first time.[149] There, a transgender fire department lieutenant who began expressing himself in a more traditionally feminine way was fired for not conforming to sex stereotypes. The court argued there was no reason why a transgender plaintiff could not be protected from discrimination on the basis of sex stereotyping by Title VII, holding “discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”[150]

Similarly, in Barnes, a transgender police officer argued he was demoted for his gender non-conformity, as he presented and lived as a woman while off-duty.[151] Relying on Smith, the court found that (1) Title VII protected Barnes as someone who did not conform to sex stereotypes and (2) he had been demoted for this non-conformity, in violation of federal law.[152]

The Eleventh Circuit also embraced this reasoning in Glenn v. Brumby. In Glenn, a transgender woman brought a claim for unlawful discrimination on the basis of sex in violation of the Equal Protection Clause after she was terminated from her employment with the Georgia General Assembly.[153] Although the claim was brought under 42 U.S.C. § 1983, the court analyzed Title VII precedent, including Price Waterhouse.[154] In doing so, the court concluded that the defendant discriminated against the employee on the basis of her sex by firing her due to her gender transition and concerns that other women would object to her use of the women’s bathroom.[155] The court found there is “congruence” between transgender-based discrimination and sex-stereotyping discrimination because an individual is regarded as transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes.”[156] And because all employees are protected from discrimination based on sex stereotypes, the court held these protections must be available to transgender employees.[157]

It is important to note other courts have approached this question from a textualist perspective, finding that discrimination on the basis of gender identity is sex discrimination precisely because it is related to the “sex” of the targeted employees. The strongest example of this is the EEOC case Macy v. Holder, in which the Commission held that anti-transgender discrimination is per se sex discrimination and does not require evidence of gender stereotyping, which is “simply one means of proving sex discrimination.”[158] Under this line of reasoning, transgender employees can establish they were discriminated against because of sex if, for example, they have evidence that their employer has animus against transgender individuals or is uncomfortable with the employee’s transition.[159] A similar approach was articulated in a District Court for the District of Columbia case, Schroer v. Billington, with an opinion by Judge Robertson, who argued that it ultimately does not “matter[] for purposes of Title VII liability whether the [defendant] withdrew its offer of employment because it perceived [the employee] to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”[160] Judge Robertson reasoned that since the employer refused to hire the plaintiff because she planned to change her anatomical sex through sex reassignment surgery as part of her transition to female, the adverse employment action was quite literally “because of sex.”[161] The opinion also analogized to discrimination against religious converts, which is clearly encompassed by religious discrimination, arguing that similar discrimination against those who seek to change their sex must constitute sex discrimination.[162]

C. Federal Cases Interpreting Title VII to Not Encompass Gender Identity Discrimination

On the other side of the Circuit Split, the Seventh and Tenth Circuit Courts of Appeals have explicitly held that Title VII does not protect transgender employees from discrimination on the basis of their gender identity. Both circuits primarily argue that Congress never intended Title VII to protect transgender status, so broadening Title VII to cover gender identity would be an impermissible overreach of the court’s adjudicatory role.[163]

In the Tenth Circuit, Etsitty v. Utah Transit Authority established the prevailing approach to gender identity discrimination claims under Title VII. In Etsitty, a bus driver was fired from the Utah Transit Authority shortly after she revealed that she was transgender to her employers.[164] Far from denying that she was fired due to being transgender, her employer’s proffered reason for terminating her was that she intended to use women’s public restrooms while wearing her employee uniform, despite still having male genitalia.[165] The court held that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” as “sex” must be taken to mean the “traditional binary conception of sex.”[166] Notably, the court acknowledged that the plain language of the statute, not the legislative intent, should guide its interpretation of Title VII; indeed, it expressed willingness to change its interpretation should “scientific research . . . someday cause a shift in the plain meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of male and female.”[167]

In the Seventh Circuit, Ulane remains the applicable interpretation of Title VII’s sex discrimination provision. However, the precedential value of Ulane has been questioned for two reasons: First, Ulane predates Price Waterhouse, which not only fundamentally changed the meaning of sex discrimination in Title VII, but also provided a new potential protection to employees discriminated against because of their transgender status.[168] Second, a Seventh Circuit case, Hively v. Ivy Tech Community College of Indiana, called into question the logic of Ulane as it relates to the proper interpretation of sex discrimination and, some have argued, may actually overrule Ulane.[169] In Hively, the court held that discrimination on the basis of sexual orientation is cognizable as sex discrimination under Title VII because the plaintiff, a lesbian woman, would not have been discriminated against for marrying a woman if she were a man, thus, the discrimination occurred “because she is a woman.”[170] The court also stated it was time to “overrule [its] previous cases that have endeavored to find and observe [the] line” between sexual orientation discrimination and sex discrimination.[171] This language could theoretically include Ulane, but the court clearly limited its decision to “the issue put before [it]”—namely sexual orientation—leaving “[a]dditional complications . . . for another day.”[172] Thus, it seems the famous Ulane precedent remains alive and well in the Seventh Circuit. Nevertheless, the Seventh Circuit’s reasoning in Hively should encourage transgender rights activists as it seems to fly directly in the face of Ulane and may generate pro-transgender case law in the near future.

D. Federal Cases Addressing Bathroom Access

In addition to the overarching Title VII case law on transgender discrimination, some federal courts have explicitly addressed transgender bathroom access. Perhaps the best known of these cases is Roberts v. Clark County School District, in which a Nevada district court explicitly adopted the holdings of the EEOC cases, Macy and Lusardi.[173] In Roberts, the plaintiff informed his employer that he was transgender and would be transitioning from female to male; shortly after, he began using the men’s restroom at his workplace.[174] In response, the school district instructed him to only use the gender neutral restrooms “to avoid any future complaints” and officially banned him from using the men’s or women’s restrooms until he could present documentation of a sex change.[175]

The Nevada District Court granted the plaintiff summary judgment on his sex discrimination claim, finding that the school district “banned Roberts from the women’s bathroom because he no longer behaved like a woman, [which] . . . alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.”[176] The court also addressed the school district’s claim that even if discrimination on the basis of Robert’s transgender status was prohibited by Title VII, it did not discriminate against him by prohibiting his use of the men’s room because he was biologically female and other similarly-situated females were also prohibited from using the men’s room.[177] The court summarily dismissed this argument because Roberts, unlike other biological females, was not allowed to use the women’s restroom and so was treated differently.[178]

Similarly, in Mickens v. General Electric Co., the Western District of Kentucky denied an employer’s motion to dismiss a transgender employee’s Title VII sex discrimination claim based on allegations that the employee was denied access to a gender-affirming bathroom and was terminated for attendance issues stemming from that denial.[179] In Mickens, the employee alleged that his employer, General Electric (“GE”), instructed him to not use the men’s restroom at the workplace and that he was required to use a restroom further away from his workstation, causing him to return late from breaks, which he was reprimanded for.[180] The court rejected the employer’s argument that discrimination on the basis of transgender status is not actionable under Title VII, citing Price Waterhouse and the prohibition against discrimination due to sex stereotyping.[181] On this basis, it found that the plaintiff met his burden of pleading a sex discrimination claim as he had alleged “continued discrimination and harassment against him . . . because he did not conform to the gender stereotype of what someone who was born female should look and act like.”[182]

The issue has also been addressed from the other side, where a non-transgender employee alleged she had been discriminated against on the basis of sex and religion because her employer permitted a transgender coworker to use the women’s restroom.[183] In Cruzan v. Special School District No. 1, a female teacher filed a suit against her school district for discrimination after the school permitted a transgender employee, Davis, to use the women’s bathroom and she encountered Davis in said bathroom.[184] The court rejected Cruzan’s argument that requiring her to share the women’s restroom with someone who was biologically male constituted sexual harassment.[185] It further held that in order establish a case of discrimination on these grounds, a plaintiff must show that the school enacted a policy directed at the plaintiff and that the plaintiff suffered adverse employment action as a result.[186] Because the school’s policy was not directed at the plaintiff and the plaintiff had “convenient access to numerous restrooms,” including single-stall bathrooms, summary judgment for the defendant was appropriate.[187]

Taken together, this recent case law demonstrates momentum toward broader interpretations of Title VII that protects employees from both discrimination on the basis of transgender status broadly and specific policies preventing transgender employees from using gender-affirming bathrooms and facilities.

V. Arguments for Competing Interpretations of Title VII as Pertaining to Transgender Bathroom Access

A war currently rages between those who believe Title VII protects transgender employees from restrictive bathroom policies and those who disagree. Both the circuit split that has developed in the courts and the divide in the executive branch exemplify this divide.[188] This Part will canvass the major legal arguments made by both sides of this debate. These arguments run the gambit from the proper interpretation of Title VII, to what constitutes discrimination in the workplace, to policy arguments regarding employee health, comfort, and safety. For clarity, this Note will refer to those who believe Title VII does not provide protection against transgender bathroom restrictions as supporters of the DOJ’s position. It will refer to those who believe Title VII does offer this protection to transgender employees as supporters of the EEOC’s position.

A. Supporters of The DOJ’s Position on Transgender Bathroom Access

First, the Trump DOJ and supporters of its position argue that Title VII’s prohibition on sex discrimination does not include transgender status; thus, it is inappropriate to read Title VII as offering protection against transgender status discrimination in the terms, conditions, and privileges of employment.[189] This, they argue, is because a plain language reading of the word “sex” does not include notions of gender identity, but refers only to the two traditionally recognized sexes—male and female.[190] Thus, gender identity is a completely separate concept from sex. This side also argues that Title VII’s legislative history shows that when the law was passed, Congress intended to protect women from discrimination in employment and did not intend (let alone envision) the law to apply to transgender status.[191] Proponents of this argument may point to federal laws that explicitly protect both “sex” and “gender identity” discrimination, like the Violence Against Women Act, to argue that if Congress had intended to protect gender identity discrimination, it would have explicitly provided for that protection.[192]

The Seventh Circuit made these arguments in Ulane to hold that Title VII does not protect against employment discrimination on the basis of transgender status. First, majority opinion author Judge Wood argued that although “some may define ‘sex’ . . . to mean an individual’s ‘sexual identity,’ [the court’s] responsibility is to . . . determine what Congress intended when it decided to outlaw discrimination based on sex.”[193] Finding no evidence Congress intended to protect “sexual identity” discrimination, Judge Wood dismissed that broader interpretation.[194] Second, Judge Wood referenced a “maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning;” in his view, the ordinary, common meaning of sex discrimination is discriminating against women because they are women and vice versa—nothing more.[195]

Notably, this argument faced pushback from opponents who argue cases like Price Waterhouse broadened the meaning of sex discrimination since Ulane.[196] In response, supporters of the DOJ position argue that Price Waterhouse and subsequent Sixth Circuit cases, Smith and Barnes, are limited to discrimination for non-conformance with gender stereotypes as opposed to transgender status itself.[197] Thus, proponents of this limited view of Title VII discrimination would argue that an employer who fires a transgender employee because of personal distaste for transgender individuals (absent evidence of sex stereotyping) does not violate Title VII.

Second, supporters of the DOJ position argue that even if Title VII protects against transgender discrimination, policies requiring employees to use bathrooms matching their biological sex are not discriminatory because they affect all employees equally and, as such, are facially neutral.[198] Under this argument, policies requiring that employees use the bathroom matching their biological sex do not unfairly single out transgender employees or create disparate treatment in the terms, conditions, and privileges of employment.[199] While the right to a bathroom in the workplace is required, this side views employees’ ability to use the bathroom of their choice as a mere privilege.[200] When the privilege to use the bathroom of the employee’s choosing is withheld from all employees, employers argue these policies are evenly applied and non-discriminatory.[201]

In addition, supporters of the DOJ position argue that employer policies restricting transgender bathroom access serve public policy goals because they protect the majority of employees from feeling uncomfortable and unsafe in workplace bathrooms.[202] They buttress their position by arguing that because transgender people are a very small minority in America,[203] it is unreasonable to subject the interests of the many to the preferences of the very few.[204] They claim that requiring employers to permit transgender employees to use the bathrooms of their choice unfairly burdens the privacy and comfort of the vast majority of employees who are cisgender.[205] This view seeks to protect individuals like the plaintiff in Cruzan, who brought suit against her employer because she felt uncomfortable sharing a restroom with a transgender coworker and believed she had a “right to privacy and modesty which the school district must respect.”[206] Indeed, employers may feel that by allowing transgender employees to use the restroom of their choice, they are appeasing one or a few employees, while upsetting the rest and essentially giving “special treatment” to their transgender employees.[207]

Finally, supporters of the DOJ position may point to safety concerns, arguing permissive bathroom policies are rife for abuse and could allow predators unfettered access to female employees in the women’s bathroom. This argument has primarily come about in the context of bathroom bills like H.B. 2, but it could easily be extended to the workplace. For example, lawmakers who supported North Carolina’s H.B. 2 argued that it ensured women and children were not placed in a “vulnerable situation[] in . . . bathrooms and changing areas,” citing concerns that men might fraudulently pretend to be transgender to commit sexual assaults.[208] Opponents of this view argue these concerns are unfounded and unsupported by statistics.[209] Nonetheless, proponents of these restrictive policies may argue such policies offer protection to female employees and thus should be allowed for policy reasons.

B. Supporters of the EEOC’s Position on Transgender Bathroom Access

Primarily, supporters of the EEOC’s position argue that Title VII’s use of “sex” should be interpreted to include gender identity for one of two reasons: 1) because Supreme Court precedent broadened the initial meaning of “sex”[210] or 2) because the plain language of “sex” naturally includes gender identity.[211] According to the first argument, Price Waterhouse broadened the meaning of sex discrimination by recognizing discrimination due to gender stereotyping; thus, regardless of the basic meaning of “sex,” sex discrimination under Title VII now necessarily encompasses notions of gender non-conformity.[212] Federal courts, including the Sixth Circuit, have embraced this view as a basis for transgender employees to seek relief from discrimination.[213] And some have pointed to the landmark Supreme Court case, Oncale v. Sundowner Offshore Services, as also broadening the scope of sex discrimination.[214]

In Oncale, the Supreme Court held for the first time that a man who was subjected to same-sex workplace harassment could bring a hostile work environment sex discrimination claim under Title VII.[215] This transgressed the traditional understanding of sex discrimination as discrimination against a woman because she is a woman and vice-versa. Writing for the majority, Justice Scalia argued that the interpretation of Title VII was not restricted to the intentions of Congress in 1964. So, despite conceding that Congress had not intended to attack same-sex harassment, he argued “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[216] Thus, supporters of the EEOC position argue that taken together, Price Waterhouse and Oncale create an expanded base of coverage for transgender employees under Title VII’s sex discrimination prohibition.[217]

Second, some argue that a plain language interpretation of “sex” simply includes more than just genitalia. The Obama-era Justice Department made this argument in its Complaint against North Carolina in opposition to H.B. 2, arguing that an individual’s “sex” includes “multiple factors, which may not always be in alignment.”[218] These factors include “hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.”[219] Thus, this argument suggests that limiting the interpretation of sex to sexual assignment at birth is overly restrictive and fails to capture the full picture of a person’s sex.[220]

Supporters of the EEOC’s position further argue that policies preventing transgender employers from using restrooms that match their gender identity are discriminatory because they disproportionately burden the transgender population.[221] According to this argument, these policies create an unequal situation in which “employees . . . may access bathrooms and changing facilities that are consistent with their gender identity in their places of work, while transgender employees may not access bathrooms and changing facilities that are consistent with their gender identity . . .”[222] In this way, they argue, transgender people are unfairly singled out by restrictive bathroom policies and therefore face disparate treatment. Supporters also argue that these policies contribute to the stigmatization of transgender status and unfairly alienate transgender people from their fellow employees in the workplace.[223] Thus, these restrictive employer policies are discriminatory, in violation of Title VII.

Lastly, supporters of the EEOC position argue that policies restricting transgender bathroom access should be unlawful for policy reasons because they can cause serious harm to transgender employees.[224] According to transgender rights advocates, prohibiting transgender people from using restrooms corresponding with their gender identity may expose them to higher levels of violence.[225] As it is, transgender people are subject to very high levels of violent crime. For example, approximately half of the transgender population will be sexually assaulted in their lifetime, as opposed to one–third of women and one–sixth of men.[226] Bathroom access implicates this issue because transgender people may be exposed to even greater risk of harassment or harm if they are forced to use restrooms not matching their gender identity, particularly if they are in the process of outwardly transitioning.[227] In fact, a survey conducted by UCLA’s Williams Institute found that almost 70% of transgender people have experienced a negative interaction in restrooms and that transgender people “who experienced issues [using the restroom] in the workplace felt it contributed to poor job performance, and some even changed jobs or simply quit their jobs to avoid the confrontations.”[228] In response to arguments from the other side, namely that allowing transgender individuals to use the bathroom of their choice threatens women, transgender rights advocates argue that these allegations are not supported by statistical evidence and present less severe threats of harm to cisgender people than to transgender people.[229]

Supporters of the EEOC’s position also argue that forcing transgender employees to use restrooms matching their biological sex can cause serious mental distress and physical health problems.[230] For instance, in its Complaint against North Carolina, the United States argued that H.B. 2’s prohibition on transgender people’s use of gender-corresponding restrooms caused them to suffer, “emotional harm, mental anguish, distress, humiliation, and indignity . . . .”[231] This is in part because transgender people do not identify with the gender they were assigned at birth and may therefore be disaffirmed in their identity when their workplaces and coworkers categorize them as their biological sex.[232] In addition, policies restricting transgender bathroom access can cause physical health issues for transgender people, who may avoid workplace restrooms based upon fear of outing themselves as transgender, being confronted, or being harassed. One study found that 54% of transgender people had suffered “physical complications like dehydration, urinary tract infections, kidney infections, and other kidney problems simply because of the tactics they used to avoid going to the restroom during the day.”[233] Thus, supporters argue these mental and physical health issues unfairly burden transgender employees, and Title VII should be interpreted to protect against this form of discrimination.

VI. Analysis

Accounting for the EEOC’s and DOJ’s competing interpretations of “sex,” the possible disparate treatment of transgender people in the workplace due to restrictive bathroom policies, and policy concerns, Title VII should be interpreted to protect against discrimination on the basis of transgender status. Moreover, denying transgender employees access to gender-affirming restrooms and other single-sex facilities should be regarded as a form of sex discrimination in violation of Title VII.

A. Interpretation of “Sex” in Title VII

Title VII’s prohibition of sex discrimination should be interpreted to include gender identity discrimination for three reasons. First, Supreme Court precedents support a broad reading of “sex” discrimination. Second, an originalist approach to statutory interpretation is probably inappropriate in this case and thus does not preclude defining “sex” as encompassing gender identity. Third, “sex” is best understood as including transgender status given the spirit and purpose of Title VII.

First, the Supreme Court precedents, Price Waterhouse and Oncale, support an expansive interpretation of sex discrimination that encompasses notions of gender identity and expression, under which transgender individuals are protected. The Seventh Circuit’s argument in Ulane, that sex discrimination includes only discrimination against women for being women and men for being men, can no longer be the prevailing interpretation since the Court decided Price Waterhouse and Oncale. Given that discrimination against transgender individuals is typically based on the idea these individuals do not think or act like members of their biological sex should, transgender discrimination clearly finds a home under the Price Waterhouse sex–stereotyping doctrine. Indeed, discrimination against individuals who are gender non-conforming is precisely the type of “reasonably comparable evil” Title VII prohibits, according to Justice Scalia’s Oncale opinion.

Second, the EEOC’s interpretation is persuasive because it is not contrary to lawmakers’ express intent. The intent of the original legislators who added sex discrimination to Title VII in 1964 is muddy; some argue the provision was only added as a last-minute poison pill to prevent the law’s passage,[234] while others dispute this claim, arguing the senator that originated the sex discrimination provision was sympathetic to feminist activists and wanted to ensure black women did not “enjoy more protection in the workplace—by virtue of their race—than white woman.”[235] Regardless, the interpretation of sex discrimination was unclear from its inception and has been a moving target ever since.[236] Legal scholars have long-criticized intentionalism because it can be difficult to discern the legislator’s intent and thus is a poor tool for interpreting law. As for Title VII, legislative intent may be even harder to pinpoint because it is not clear why sex discrimination was included. For these reasons, the interpretation of Title VII’s sex discrimination provision should not turn on legislative intent.

Third, Title VII should be read to protect employees from gender identity discrimination because this interpretation best reflects the broad goals of the remedial law. Title VII was designed to prevent employers from treating prospective or current employees unequally based on non-qualitative features like race, religion, national origin, or sex. Just as the law would protect a female employee who is not promoted because she is a woman (without regard for her skills or job performance), it should similarly protect transgender employees who are not given the same privileges and rights in employment as their cisgender peers merely because of their gender identity. By adopting a broad interpretation of “sex” to include more than the male-female gender binary, Title VII can better protect vulnerable populations from unfair employment actions, which is within the spirit, if not the letter, of Title VII. After all, even the Seventh Circuit, in issuing perhaps the strongest rejection of transgender rights under Title VII that remains in effect, acknowledged the well-recognized “maxim that remedial statutes [like Title VII] should be liberally construed.”[237] For these reasons, Title VII should be interpreted to prohibit discrimination on the basis of gender identity.

B. Equal Bathroom Access and Discrimination

In addition, restricting bathroom access for transgender employees should be regarded as facial discrimination in violation of Title VII, even where alternatives like gender-neutral or private bathrooms are provided. Although employer policies requiring all employees to use bathrooms corresponding to their biological sex are facially neutral, this alone does not end the inquiry with respect to underlying discrimination. Upon a closer look, such policies are unquestionably discriminatory because they disproportionately impact transgender employees. While being legally required to use the bathroom matching one’s “official” sex is unlikely to ever inconvenience a cisgender person, such policies substantially impact the day-to-day life and working conditions of a transgender person.[238] Moreover, the employer’s intent in adopting these policies is to prevent transgender employees from using restrooms matching their gender identity, not cisgender employees. This alone should expose the discriminatory nature of facially neutral policies restricting bathroom access as they are designed to single out transgender employees and have clear discriminatory intent.[239]

It is important to note that policies requiring transgender employees to use private or gender-neutral facilities are often an improvement on policies requiring transgender employees to use gender-disaffirming bathrooms. But such policies are actually more discriminatory on their face because they clearly segregate the workplace by providing transgender individuals with different employment privileges than their peers. Even assuming the bathrooms provided are identical, this implicates the issue of “separate but equal,” and, as Brown v. Board of Education made clear, such separate facilities are not equal.[240] For these reasons, policies restricting transgender bathroom access on the basis of gender identity are probably discriminatory under Title VII.

C. Policy Implications of Bathroom Access

Finally, policy reasons, including the safety and health of transgender individuals, weigh in favor of finding bathroom bills and similar policies impermissible under Title VII. Transgender individuals are disproportionately vulnerable to sexual and physical violence. Requiring them to use restrooms not matching their gender identity may expose them to even greater levels of assault and violence by outing them as “other” in facilities meant to ensure privacy. Although there are concerns about the health and safety of employees if violent predators manage to abuse permissive bathroom access policies, these concerns are not based on evidence. This is in sharp contrast to the abundance of evidence showing that transgender individuals are a particularly vulnerable minority group. For these reasons, public policy warrants protecting transgender individuals’ access to gender-affirming workplace bathrooms.

Public policy also supports greater transgender bathroom access for health reasons. Many transgender individuals report experiencing serious health issues, including kidney stones and bladder infections, as a result of avoiding public bathrooms and the conflicts that arise in them. Moreover, forcing transgender individuals to use restrooms that do not match their gender identity can be emotionally damaging, psychologically disaffirming, and otherwise harmful to a group already subject to higher than average levels of depression and suicide.[241]

This Note does not ignore the concerns of some individuals who are made uncomfortable by the notion of sharing single-sex facilities with transgender coworkers, whom they perceive to be from the opposite sex. However, the discomfort of these employees does not justify imposing serious and life-threatening harms on transgender employees through restrictive bathroom policies. It also does not justify the exclusion of transgender individuals as “other” that results when transgender employees are forced to use gender-neutral bathrooms. This is especially true given that people share bathrooms with transgender people every day without ever knowing it.[242] Notably, individuals who did not want to share spaces with members of a different race during the Civil Rights movement made similar arguments.[243] As the argument failed then, so too should it fail today.

Ultimately, the greater severity of physical and mental harm to transgender employees outweighs the potential for harm to their coworkers. For these policy reasons, Title VII should be read to protect transgender employees from discrimination.

Conclusion

Transgender bathroom access is a morass. With sharp divisions among the courts, the states, and even the executive branch of the federal government, it is unclear when and how this issue will be resolved. This is punctuated by the fact that the Supreme Court will not hear a single case involving transgender rights this term. Yet there is a path forward, and it may exist in the building momentum toward recognizing a protection for transgender employees under Title VII’s sex discrimination prohibition. Supreme Court precedent that takes an expansive view of sex discrimination and society’s growing understanding of gender identity and expression provides good reason to read Title VII to protect transgender employees. Such a reading of Title VII is also compelling because it protects one of the Unites States’ most vulnerable populations from further harm. It is this approach that best meets the remedial goals of Title VII, providing the most equality, justice, liberty, and protection for minorities. As such, it is the approach the Supreme Court should take when it hears this issue in the future.

[*] *. Executive Senior Editor, Southern California Law Review, Volume 91; J.D. 2018, University of Southern California Gould School of Law; B.A. Political Science 2014, University of California, Los Angeles. I would like to thank Professor Ronald Garet and Professor David B. Cruz for their assistance and valuable insights on this project. I would also like to thank Kathy Bader and Seth Jones for their support. Finally, I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

[1]. Michael Hughes, Transgender Lives: Your Stories, N.Y. Times, https://nyti.ms/2FdI6DG (last visited May 9, 2018).

[2]. Flores et al., Williams Institute, How Many Adults Identify as Transgender in the United States? 2–3 (2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf.

[3]. Restroom Access for Transgender Employees, Human Rights Campaign, http://www.hrc.org/resources/restroom-access-for-transgender-employees (last visited May 9, 2018).

[4]. Mitch Kellaway, Trans Folks Respond to ‘Bathroom Bills’ With #WeJustNeedtoPee Selfies, Advocate (Mar. 14, 2015), https://www.advocate.com/politics/transgender/2015/03/14/trans-folks-respond-bathroom-bills-wejustneedtopee-selfies.

[5]. German Lopez, Tennessee’s Anti-Transgender Bathroom Bill, Explained, Vox (Apr. 7, 2016, 9:10 AM), https://www.vox.com/2016/4/7/11381400/tennessee-transgender-bathroom-bill.

[6]. Id.

[7]. See Public Facilities Privacy & Security Act, ch. 3, 2016 N.C. Sess. Laws 12 (codified as amended at N.C. Gen Stat. § 143-760 (2016)), repealed by ch.4, 2017 N.C. Sess. Laws 1 [hereinafter H.B. 2]; Joellen Kralik, “Bathroom Bill” Legislative Tracking, National Conference of State Legislators (July 28, 2017), http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx.

[8]. Jason Hanna, Madison Park & Elliot C. McLaughlin, North Carolina Repeals “Bathroom Bill,” CNN Politics, https://www.cnn.com/2017/03/30/politics/north-carolina-hb2-agreement/index
.html (last updated Mar. 30, 2017, 9:36 PM).

[9]. Notably, in North Carolina, an individual may only change the sex marker on their birth certificate if they have undergone full sexual reassignment surgery. See Changing Birth Certificate Sex Designations: State-By-State Guidelines, Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/trans-changing-birth-certificate-sex-designations (last visited May 9, 2018).

[10]. David A. Graham, North Carolina Overturns LGBT-Discrimination Bans, Atlantic (Mar. 24, 2016), https://www.theatlantic.com/politics/archive/2016/03/north-carolina-lgbt-discrimination-transgender-bathrooms/475125.

[11]. See, e.g., Michael Gordon et al., Understanding HB2: North Carolina’s Newest Law Solidifies State’s Role in Defining Discrimination, Charlotte Observer (March 26, 2016, 11:00AM), http://www.charlotteobserver.com/news/politics-government/article68401147.html; Avianne Tan, North Carolina’s Controversial “Anti-LGBT” Bill Explained, ABC News (Mar. 24, 2016, 6:51 PM), http://abcnews.go.com/US/north-carolinas-controversial-anti-lgbt-bill-explained/story?id=37898153; Judy Woodruff & John Yang, How North Carolina Signed a Bill Dubbed the Most Anti-LGBT Law in the U.S., PBS (Mar. 24, 2016, 8:07 PM), https://www.pbs.org/newshour/show/how-north-carolina-signed-a-bill-dubbed-most-anti-lgbt-law-in-the-u-s.

[12]. Craig Jarvis et al., McCrory, NC Lawmakers Sue Justice Department Over HB2; Feds Counter With Lawsuit, Charlotte Observer (May 9, 2016, 10:35 AM) http://www.charlotteobserver.com/news/politics-government/article76502777.html; McCrory Drops House Bill 2 Lawsuit, Cites Costs, Assoc. Press (Sept. 18, 2016), http://abc11.com/politics/mccrory-drops-house-bill-2-lawsuit-cites-costs/1516428; Press Release, U.S. Dep’t of Justice, Justice Department Files Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals (May 9, 2016), https://www.justice.gov/opa/pr/justice-department-files-complaint-against-state-north-carolina-stop-discrimination-against.

[13]. Tom Jensen, HB 2 Deeply Unpopular in North Carolina; Voters Think It’s Hurting State, Pub. Pol’y Polling (Apr. 25, 2016), http://www.publicpolicypolling.com/main/2016/04/hb-2-deeply-unpopular-in-north-carolina-voters-think-its-hurting-state.html.

[14]. See ch.4, 2017 N.C. Sess. Laws 1 (codified as amended at N.C. Gen Stat. § 143-760 (2017)); Allen Smith, N.C. Repeals “Bathroom Bill,” Pre-Empts Local Employment Laws, Soc’y for Human Resource Mgmt. (Mar. 31, 2017), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/h.b.-2-repeal.aspx.

[15]. These states are: Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, New York, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wyoming. Joellen Kralik, “Bathroom Bill” Legislative Tracking, Nat’l Conf. of State Legislators (July 28, 2017), http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130
.aspx.

[16]. Id.

[17]. Laws, Regulations & Guidance: Title VII and the Civil Rights Act of 1964, Equal Emp. Opportunity Commission, https://www.eeoc.gov/laws/statutes/titlevii.cfm (last visited May 9, 2018) [hereinafter EEOC].

[18]. Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Transgender Students (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Title VII and the Civil Rights Act, supra note 17; Bathroom/Facility Access and Transgender Employees, Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc
/publications/fs-bathroom-access-transgender.cfm (last visited May 15, 2018).

[19]. Chris Geidner, Justice Department Will Now Support Transgender Discrimination Claims in Litigation, BuzzFeed News (Dec. 18, 2014, 11:06 AM), https://www.buzzfeed.com/chrisgeidner
/justice-department-announces-reversal-on-litigating-transgen?utm_term=.vhkNLmjp3#.sjyP4705N.

[20]. William Duncan, How the Feds Began Rewriting Title IX To Push Trans Policies, Federalist (May 25, 2016), http://thefederalist.com/2016/05/25/how-the-feds-began-rewriting-title-ix-to-push-trans-policies/; Eugene Volokh, Successful Religious Freedom Defense in Title VII Case Brought by Transgender Employee, Wash. Post: Volokh Conspiracy (Aug. 19, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/19/successful-religious-freedom-defense-in-title-vii-case-brought-by-transgender-employee.

[21]. Kevin Johnson, Jeff Sessions: Transgender People Not Protected from Workplace Discrimination, USA Today (Oct. 5, 2017, 4:45 PM), https://www.usatoday.com/story/news/politics
/2017/10/05/jeff-sessions-transgender-people-not-protected-workplace-discrimination/735709001.

[22]. Compare Jae Alexis Lee, What if a Pervert Pretending to be Transgender Entered the Opposite Sex’s Bathroom?, Huffington Post (Oct. 28, 2017), http://www.huffingtonpost.com
/quora/what-if-a-pervert-pretend_b_12677938.html, with Nicole Russell, Don’t Put My Five-Year-Old Girl in a Bathroom with a Transgender Boy, Federalist (July 24, 2015), http://thefederalist.com
/2015/07/24/transgender-bathroom-my-daughter.

[23]. Katy Steinmetz, Why LGBT Advocates Say Bathroom “Predators” Argument Is a Red Herring, Time (May 2, 2016), http://time.com/4314896/transgender-bathroom-bill-male-predators-argument.

[24]. See, e.g., Jeff Brady, When a Transgender Person Uses a Public Bathroom, Who Is at Risk?, NPR (May 15, 2016, 7:48 AM), http://www.npr.org/2016/05/15/477954537/when-a-transgender-person-uses-a-public-bathroom-who-is-at-risk.

[25]. See Transgender FAQ, GLAAD, http://www.glaad.org/transgender/transfaq (last visited May 15, 2018).

[26]. Id.

[27]. Id.

[28]. Id.

[29]. Id.

[30]. Id.

[31]. Id.

[32]. Id.

[33]. See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013). See also Wynne Parry, Gender Dysphoria: DSM-5 Reflects Shift in Perspective on Gender Identity, Huffington Post, http://www.huffingtonpost.com/2013/06/04
/gender-dysphoria-dsm-5_n_3385287.html (last updated Aug. 4, 2013).

[34]. Ranna Parekh, What is Gender Dysphoria?: Treatment, Am. Psychiatric Ass’n, https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (last updated Feb. 2016).

[35]. Id.

[36]. Fenway Health, Glossary of Gender & Transgender Terms 15 (2010), http://fenwayhealth.org/documents/the-fenway-institute/handouts/Handout_7-C_Glossary_of_Gender
_and_Transgender_Terms__fi.pdf.

[37]. See Avery Martens, Commentary, Transgender People Have Always Existed, ACLU Ohio (June 10, 2016), http://www.acluohio.org/archives/blog-posts/transgender-people-have-always-existed; A Map of Gender-Diverse Cultures, PBS (Aug. 11, 2015), http://www.pbs.org/independentlens
/content/two-spirits_map-html.

[38]. John Leland, A Spirit of Belonging, Inside and Out, N.Y. Times (Oct. 8, 2006), http://www.nytimes.com/2006/10/08/fashion/08SPIRIT.html.

[39]. See generally Harlan Pruden & Se-ah-dom Edmo, Two-Spirit People: Sex, Gender & Sexuality in Historic and Contemporary Native America (2014), http://www.ncai.org/policy-research-center/initiatives/Pruden-Edmo_TwoSpiritPeople.pdf.

[40]. Trista Wilson, Comment, Changed Embraces, Changes Embraced? Renouncing the Heterosexist Majority in Favor of a Return to Traditional Two-Spirit Culture, 36 Am. Indian L. Rev. 161, 169 (2011).

[41]. Steve Hendrix, A History Lesson for Trump: Transgender Soldiers Served in the Civil War, Wash. Post (Aug. 25, 2017), https://www.washingtonpost.com/news/retropolis/wp/2017/07/26/a-history-lesson-for-trump-transgender-soldiers-served-in-the-civil-war/?utm_term=.79df6a8d4c44.

[42]. Id.

[43]. John T. McQuiston, Christine Jorgensen, 62, Is Dead; Was First to Have a Sex Change, N.Y. Times (May 4, 1989), http://www.nytimes.com/1989/05/04/obituaries/christine-jorgensen-62-is-dead-was-first-to-have-a-sex-change.html.

[44]. See, e.g., Erica Keppler, Chaz Bono’s Place in History, Huffington Post, http://www.huffingtonpost.com/erica-keppler/chaz-bonos-place-in-histo_b_981508.html (last updated Feb. 2, 2016); Lana Wachowski Received the HRC Visibility Award, Human Rights Campaign (Oct. 25, 2012), https://www.hrc.org/videos/videos-lana-wachowski-receives-the-hrc-visibility-award.

[45]. Aleksandra Gjorgievska & Lily Rothman, Laverne Cox Is the First Transgender Person Nominated for an Emmy—She Explains Why That Matters, TIME (July 10, 2014, 4:00 PM), http://time.com/2973497/laverne-cox-emmy.

[46]. Katy Steinmetz, Laverne Cox Talks to TIME About the Transgender Movement, TIME (May 29, 2014), http://time.com/132769/transgender-orange-is-the-new-black-laverne-cox-interview.

[47]. Daniel D’Addario, Bruce Jenner Comes Out as Transgender: “For All Intents and Purposes, I Am a Woman”, TIME (Apr. 24, 2015, 10:53 PM), http://time.com/3835205/bruce-jenner-diane-sawyer-transgender.

[48]. Arash Markazi, How Bruce Jenner Became an Olympic Icon Exactly 39 Years Ago, ESPN (July 30, 2015), http://www.espn.com/olympics/story/_/id/13346959/bruce-jenner-became-olympic-icon-exactly-39-years-ago.

[49]. Susan Milligan, Danica Roem Becomes First Transgender Woman to Win State Seat, U.S. News (Nov. 7, 2017, 9:53 PM), https://www.usnews.com/news/politics/articles/2017-11-07/danica-roem-becomes-first-transgender-woman-to-win-state-seat-in-virginia.

[50]. See U.S. Const. amend. XIV.

[51]. Compare Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015), with Glenn v. Brumby, 663 F.3d 1312, 1319 (11th Cir. 2011).

[52]. About ENDA, Americans for Workplace Opportunity, http://web.archive.org
/web/20160318164443/http://workplaceopportunity.org/about-enda (last visited May 15, 2018).

[53]. See Shaan Rizvi, The Latest LGBT Legal Updates for the Workplace, Employment Practices Solutions (Feb. 28, 2017), http://www.epspros.com/news-resources/whitepapers/2017/the-latest-lgbt-legal-update-for-the-workplace%20.html.

[54]. Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, Human Rights Campaign, https://www.hrc.org/resources/cities-and-counties-with-non-discrimination
-ordinances-that-include-gender (last visited May 15, 2018).

[55]. Id.

[56]. Aaron Lacey & Jesse Doggendorf, A Look at the Legal Issues in the Transgender Bathrooms Debate, Thompson Coburn LLP (Aug. 5, 2016), http://www.thompsoncoburn.com/insights/blogs
/regucation/post/2016-08-05/a-look-at-the-legal-issues-in-the-transgender-bathrooms-debate.

[57]. See Angela Dallara, Groundbreaking Report Reflects Persistent Discrimination Against Transgender Community, GLAAD (Feb. 4, 2011), https://www.glaad.org/2011/02/04/groundbreaking-report-reflects-persistent-discrimination-against-transgender-community. See generally Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), https://transequality.org/sites/default/files/docs/resources/NTDS
_Report.pdf.

[58]. Katy Steinmetz, Why Transgender People Are Being Murdered at a Historic Rate, TIME (Aug. 17, 2015), http://time.com/3999348/transgender-murders-2015.

[59]. Grant et al., supra note 57.

[60]. National Equality Map, Transgender L. Ctr., https://transgenderlawcenter.org
/equalitymap (last updated Feb. 7, 2018).

[61]. Id.

[62]. Id.

[63]. Id.

[64]. “Bathroom Bill” Legislative Tracking, supra note 7.

[65]. Id.

[66]. Jeremy B. White, All-Gender Bathroom Bill Passes California Assembly, Sac. Bee (May 9, 2016, 2:25 PM), http://www.sacbee.com/news/politics-government/capitol-alert/article76595197.html.

[67]. Kwegyirba Croffie, Vermont Passes Gender-Neutral Bathroom Bill, CNN (May 13, 2018, 8:50 PM), https://www.cnn.com/2018/05/13/us/vermont-gender-neutral-restroom-bill/index.html.

[68]. See, e.g., NC Gov Defends “Bathroom Bill,” Says Law Is About Privacy, Not Discrimination, Fox News (Apr. 29, 2016), http://www.foxnews.com/politics/2016/04/29/nc-gov-defends-bathroom-bill-says-law-is-about-privacy-not-discrimination.html.

[69]. Alia E. Dastagir, The Imaginary Predator in America’s Transgender Bathroom War, USA Today (Apr. 29, 2016, 5:32 PM), http://www.usatoday.com/story/news/nation/2016/04/28
/transgenderbathroom-bills-discrimination/32594395.

[70]. See, e.g., Interpretation of 20 C.F.R. 1910.141(c)(1)(i): Toilet Facilities, Occupational Safety and Health Admin. (Apr. 4, 1998), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p
_table=INTERPRETATIONS&p_id=22932; Occupational Safety and Health Admin., Best Practices: A Guide to Restroom Access for Transgender Workers (2015) https://www.osha.gov/Publications/OSHA3795.pdf.

[71]. Best Practices, supra note 70.

[72]. Id.

[73]. EEOC, supra note 17.

[74]. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *6 (Apr. 1, 2015).

[75]. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Ulane v. E. Airlines Inc., 742 F.2d 1081 (7th Cir. 1984); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (collecting cases).

[76]. See, e.g., Gillian Thomas, Because of Sex 1–7 (2016); Scott Highhouse, The History Corner: Was the Addition of Sex to Title VII a Joke? Two Viewpoints, Soc’y for Indust. & Org. Psych., http://www.siop.org/tip/jan11/12highhouse.aspx (last visited May 15, 2018); Mark Joseph Stern, How a 1964 Civil Rights Law Makes North Carolina’s Bathroom Bill Illegal, Slate (May 18, 2016, 10:14 AM), http://www.slate.com/blogs/outward/2016/05/18/sex_discrimination_is_trans
_discrimination_gilliam_thomas_explains.html.

[77]. See Thomas, supra note 76, at 3.

[78]. See Jo Freeman, How “Sex” Got into Title VII: Persistent Opportunism As a Maker of Public Policy, 9 Law & Ineq. 163, 163–75 (1991).

[79]. Id.

[80]. Id.

[81]. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1082 (7th Cir. 1984).

[82]. Id.

[83]. Id.

[84]. Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 823, 825 (N.D. Ill. 1983), rev’d, 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (“After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex.”).

[85]. Id. at 823–25.

[86]. See id.

[87]. See Ulane, 742 F.2d at 1084–87.

[88]. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).

[89]. Id. at 228–36.

[90]. Id. at 235.

[91]. Id.

[92]. Thomas Bourgeois, Title VII Protections for Transgender and Transsexual Employees, La. L. Rev. (Oct. 28, 2015), https://lawreview.law.lsu.edu/2015/10/28/title-vii-protections-for-transgender-and-transsexual-employees.

[93]. Title IX and Sex Discrimination, Office for Civil Rights, https://www2.ed.gov/about
/offices/list/ocr/docs/tix_dis.html (last updated Apr. 2015).

[94]. Robert Barnes, Supreme Court Sends Virginia Transgender Case Back to Lower Court, Wash. Post (Mar. 6, 2017), http://wapo.st/2mvVo80?tid=ss_mail&utm_term=.38cd70402500.

[95]. See Doe v. Reg’l Sch. Unit 26, 86 A.3d 600, 607 (2014).

[96]. See Mathis v. Fountain-Fort Carson Sch. Dist. No. 8, Charge No. P20130034X, (Colo. Civ. Rights Div. 2013), https://archive.org/stream/716966-pdf-of-coy-mathis-ruling/716966-pdf-of-coy-mathis-ruling_djvu.txt.

[97]. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 718 (4th Cir. 2016).

[98]. G.G. v. Gloucester County School Board, Am. Civil Liberties Union, https://www.aclu.org/cases/gg-v-gloucester-county-school-board (last updated Mar. 6, 2017) [hereinafter ACLU].

[99]. See Gloucester County School Board v. G.G., SCOTUSBlog, http://www.scotusblog.com
/case-files/cases/gloucester-county-school-board-v-g-g (last updated Apr. 7, 2017).

[100]. ACLU, supra note 98.

[101]. Barnes, supra note 94.

[102]. German Lopez, Watch Donald Trump Reach Out to “L, G, B, T . . . Q” Americans, Vox (July 21, 2016, 11:34 PM), https://www.vox.com/2016/7/21/12254616/trump-acceptance-speech-lgbtq-rnc.

[103]. Michelangelo Signorile, Why Donald Trump Unfurled an Upside Down Rainbow Flag Onstage, Huffington Post (November 1, 2016, 11:19 AM), https://www.huffingtonpost.com/entry
/why-donald-trump-unfurled-an-upside-down-rainbow-flag-onstage_us_58189a60e4b0990edc336c51.

[104]. Karma Allen, Trump’s Reversal of Transgender Bathroom Guidance Contradicts His Past Claims of Support, ABC News (Feb. 23, 2017, 2:16 AM), http://abcnews.go.com/Politics/trumps-reversal-transgender-bathroom-guidance-contradicts-past-claims/story?id=45678113.

[105]. Id.

[106]. Deena Zaru, Caitlyn Jenner Takes Trump Up on the Offer, CNN Pol. (Aug. 16, 2017, 8:59 PM), http://www.cnn.com/2016/04/28/politics/caitlyn-jenner-bathroom-trump-tower-donald-trump
/index.html.

[107]. Trump Rolls Back Transgender Bathroom Guidelines for Schools, Fortune (Feb. 23, 2017), http://fortune.com/2017/02/22/trump-lgbt-transgender-bathroom-guidelines.

[108]. Id.

[109]. How Liberals and Conservatives Are Reacting to Trump’s Transgender Bathroom Decision, Fortune (Feb. 23, 2017), http://fortune.com/2017/02/22/trump-transgender-school-bathroom-reaction.

[110]. Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864?ref_src=twsrc%5Etfw; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:04 AM), https://twitter.com/realDonaldTrump
/status/890196164313833472?refsrc=twsrc%5Etfw; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369?ref
_src=twsrc%5Etfw. See also Zeke J. Miller, President Trump Has Taken a Key Step to Implement His Transgender Military Ban, TIME (Aug. 25, 2017), http://time.com/4916871/donald-trump-transgender-military-ban.

[111]. German Lopez, Trump’s Justice Department Just Rescinded a Memo Protecting Transgender Workers, Vox (Oct. 5, 2017, 11:08 AM), https://www.vox.com/identities/2017/10/5/16429800/trump-sessions-transgender-workers.

[112]. Id.

[113]. German Lopez, It’s Not Only the Military. Trump’s Administration Just Took Another Big Anti-LGBTQ Step., Vox (July 27, 2017, 9:50 AM), https://www.vox.com/identities/2017/7/27
/16049306/trump-sessions-justice-department-lgbtq.

[114]. Press Release, U.S. White House, President Donald J. Trump Will Continue to Enforce Executive Order Protecting the Rights of the LGBTQ Community in the Workplace (Jan. 31, 2017), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-will-continue-enforce-executive-order-protecting-rights-lgbtq-community-workplace.

[115]. Id.

[116]. See Lopez, supra note 1111.

[117]. See Michelle E. Phillips, EEOC Stresses Title VII Bars Discrimination Against Transgender Workers, Including Regarding Bathroom Access, Jackson Lewis (May 4, 2016), https://www.jacksonlewis.com/publication/eeoc-stresses-title-vii-bars-discrimination-against-transgender-workers-including-regarding-bathroom-access.

[118]. Id.

[119]. About EEOC, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc (last visited May 15, 2018).

[120]. What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc/newsroom/wysk
/enforcement_protections_lgbt_workers.cfm (last visited May 15, 2018).

[121]. Id.

[122]. Id.

[123]. Id. See generally Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) (discussing an EEOC decision that held that failing to hire a transgender woman can be sex discrimination).

[124]. See Press Release, EEOC, Deluxe Financial to Settle Sex Discrimination Suit on Behalf of Transgender Employee (Jan. 21, 2016), https://www.eeoc.gov/decisions/0120133395.txt.

[125]. Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *1 (Apr. 1, 2015).

[126]. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 386 (2d Cir. 2015); Brown v. Subway Sandwich Shop of Laurel, Inc., No. 2:15-CV-77-KS-MTP, 2016 U.S. Dist. LEXIS 76526, at *5–6 (S.D. Miss. 2016); Doe v. Arizona, No. CV-15-02399-PHX-DGC, 2016 WL 1089743, at *2 (D. Ariz. 2016); Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014 n.104 (D. Nev. 2016); Martin v. EEOC, 19 F. Supp. 3d 291, 297 (D.D.C. 2014).

[127]. Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *1 (Apr. 20, 2012).

[128]. Fact Sheet: Bathroom/Facility Access and Transgender Employees, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm (last viewed May 15, 2018).

[129]. Id. See also Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756 at *8 (Apr. 1, 2015).

[130]. Lusardi, 2015 WL 1607756, at *1.

[131]. Id. at *2.

[132]. Id.

[133]. Id. at *10.

[134]. See, e.g., Ryan v. Grae & Rybicki P.C., 135 F.3d 867, 870 (2d Cir. 1998).

[135]. See Rizvi, supra note 533; Patrick Dorrian, EEO Roundup: What Deference Do Courts Give to the EEOC’s Views?, Bloomberg BNA (June 8, 2016), https://www.bna.com/eeo-roundup-deference-b57982073811 (discussing the deference given to the EEOC).

[136]. Best Practices, supra note 70, at 1.

[137]. Id.

[138]. Id. (emphasis added).

[139]. Id. at 2.

[140]. Office of Fed. Contract Compliance Programs, Dep’t of Labor, Frequently Asked Questions: Sexual Orientation and Gender Identity, https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html#Q24 (last visited May 15, 2018).

[141]. Id.

[142]. See, e.g., Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, Equal Employment Opportunity Comm’n, https://www.eeoc.gov
/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (last visited May 15, 2018); Scott Rabe, Sam Schwartz-Fenwick & Marlin Duro, TITLE VII: Court Breaks from Department of Justice on Transgender Rights, Seyfarth Shaw: Employment Law Outlook (Nov. 2, 2017), https://www.laborandemploymentlawcounsel.com/2017/11/title-vii-court-breaks-from-department-of-justice-on-transgender-rights.

[143]. Equality Maps: Federal Courts Decisions Title VII: Gender Identity, Movement Advancement Project, http://www.lgbtmap.org/equality-maps/federal_court_decisions (last updated May 15, 2018).

[144]. Id.

[145]. Id.

[146]. See generally Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Glenn v. Brumby, 72 4 F. Supp. 2d 1284 (N.D. Ga. 2010), aff’d, 663 F.3d 1312 (11th Cir. 2011).

[147]. See cases cited supra note 1466.

[148]. Barnes v. City of Cincinnati, 401 F.3d 729, 741 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004). See also Sexual Orientation and Transgender Discrimination, Katz, Marshall & Banks, LLP http://www.kmblegal.com/practice-areas/discrimination-retaliation/sexual-orientation-transgender-discrimination (last visited May 15, 2018).

[149]. Smith, 378 F.3d at 572. See also Eric S. Dreiband & Brett Swearingen, The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964 7–8 (2015).

[150]. Smith, 378 F.3d at 575.

[151]. Barnes, 401 F.3d at 733. See also Dreiband & Swearingen, supra note 14949, at 8.

[152]. Barnes, 401 F.3d at 737–38.

[153]. Glenn v. Brumby, 663 F.3d 1312, 1313–14 (11th Cir. 2011).

[154]. Id. at 1316.

[155]. Id. at 1320–21.

[156]. Id. 1316–17.

[157]. Id. at 1318–19.

[158]. See Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *7–10 (Apr. 20, 2012) (“Thus, a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations.”).

[159]. Id. at *7–8.

[160]. Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).

[161]. Id. at 307–08.

[162]. Id. at 306–07.

[163]. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007); Ulane v. E. Airlines Inc., 742 F.2d 1081 (7th Cir. 1984).

[164]. Etsitty, 502 F.3d at 1218.

[165]. Id. at 1224–25.

[166]. Id. at 1221–22.

[167]. Id. at 1222.

[168]. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (discussing the impact of Price Waterhouse on the Ulane decision); Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163, 1189–90 (N.D. Ga. 2014) (same).

[169]. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345–46 (7th Cir. 2017). For an argument that Hively overruled Ulane, see Mark Joseph Stern, The 7th Circuit’s Landmark Anti-Gay Discrimination Ruling is also Great News for Trans Rights, Slate (Apr. 5, 2017, 2:16 PM), http://www.slate.com/blogs/outward/2017/04/05/_7th_circuit_decision_in_hively_is_great_news_for_trans_rights.html (“Hively therefore overturned Ulane.”).

[170]. Id.

[171]. Id. at 350–51.

[172]. Id. at 351–52.

[173]. Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014–15 (D. Nev. 2016).

[174]. Id. at 1005–06.

[175]. Id.

[176]. Id. at 1015.

[177]. Id. at 1016.

[178]. Id.

[179]. Mickens v. GE Co., No. 3:16CV-00603-JHM, 2016 U.S. Dist. LEXIS 163961, at *10 (W.D. Ky. 2016).

[180]. Id. at *2–3.

[181]. Id. at *8–9.

[182]. Id. at *9.

[183]. Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 982–83 (8th Cir. 2002).

[184]. Id.

[185]. Id. at 984.

[186]. Id. at 982, 984.

[187]. Id.

[188]. See supra Parts III, IV.

[189]. See Emily McCord, North Carolinians Who Support “Bathroom Law” Say They’re Being Drowned Out, NPR (May 15, 2016, 5:14 PM), http://www.npr.org/2016/05/15/477946675/north-carolinians-who-support-bathroom-law-say-theyre-being-drowned-out.

[190]. Complaint for Declaratory Judgement at 6, McCrory v. United States, No 5:16-cv-00238-BO (E.D. N.C. May 9, 2016).

[191]. See Jim S. McNeill & Peter Stockburger, Transgender Bathroom Debate: What’s the Deference?, Law360 (May 18, 2016, 1:07 PM), https://www.law360.com/articles/796989.

[192]. Id.

[193]. Ulane v. E. Airlines Inc., 742 F.2d 1081, 1084 (7th Cir. 1984).

[194]. Id. at 1084–85.

[195]. Id. at 1085.

[196]. See, e.g., Dana Beyer, Jillian T. Weiss & Riki Wilchins, New Title VII and EEOC Rulings Protect Transgender Employees 3 (2014), http://transgenderlawcenter.org/wp-content
/uploads/2014/01/TitleVII-Report-Final012414.pdf.

[197]. See Etsitty, 502 F.3d at 1223–24; Dreiband & Swearingen, supra note 1499.

[198]. See McNeill & Stockburger, supra note 191.

[199]. Id.

[200]. Nicole Russell, The Transgender Lobby’s Demands Are Not Civil Rights, Federalist (Nov. 22, 2016), http://thefederalist.com/2016/11/22/transgender-lobbys-demands-not-civil-rights.

[201]. Id.

[202]. Id.

[203]. Transgender people are estimated to represent about 0.5% of the United States population. Flores et al., supra note 2, at 5.

[204]. Business Leaders Support HB2 & Governor McCrory, Keep NC Safe, http://keepmyncsafe.com/hundreds-business-leaders-show-support-hb2-governor-mccrory (last updated Apr. 29, 2016).

[205]. Id.; Complaint for Declaratory Judgement, supra note 190, at 2.

[206]. Legal Battle is Building Over Transgender Librarian, Tuscaloosa News (Aug. 25, 1999), https://genderidentitywatch.com/2015/01/07/cruzan-v-special-school-dist-1-usa.

[207]. Id.; Business Leaders Support HB2, supra note 204.

[208]. Stevie Borrello, Sexual Assault and Domestic Violence Organizations Debunk “Bathroom Predator Myth”, ABC News (Apr. 22, 2016, 7:15 PM), http://abcnews.go.com/US/sexual-assault-domestic-violence-organizations-debunk-bathroom-predator/story?id=38604019.

[209]. Id.

[210]. See, e.g., Arthur S. Leonard, A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination, Other Publications, 2017, at 3.

[211]. See, e.g., Complaint at 7, United States v. North Carolina, No. 1:16-cv-00425 (M.D. N.C. May 19, 2016).

[212]. See Leonard, supra note 210, at 4.

[213]. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 571–73 (6th Cir. 2004).

[214]. See Leonard, supra note 210, at 4–5.

[215]. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81–82 (1997). See also Leonard, supra note 210, at 4–5.

[216]. Oncale, 523 U.S. at 79–80.

[217]. See Leonard, supra note 210, at 4–5.

[218]. Complaint, supra note 211, at 7.

[219]. Id.

[220]. Id. at 7–9.

[221]. Id. at 4, 6.

[222]. Id. at 9.

[223]. See id.

[224]. See, e.g., Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of Gender and Its Impact on Transgender People’s Lives, 19 J. Pub. Mgmt. & Soc. Pol’y 65, 71–78 (2013).

[225]. Brady, supra note 24.

[226]. Sexual Assault and the LGBTQ Community, Human Rights Campaign, http://www.hrc.org/resources/sexual-assault-and-the-lgbt-community (last visited May 15, 2018).

[227]. Jennifer Litton Tidd, Segregated Bathrooms Will Increase Violence Against Women, LGBTQ Nation (May 14, 2016), http://www.lgbtqnation.com/2016/05/segregated-bathroom-laws-will-increase-violence-trans-people.

[228]. Zach Ford, STUDY: Transgender People Experience Discrimination Trying to Use Bathrooms, Think Progress (June 26, 2013, 1:06 PM), https://thinkprogress.org/study-transgender-people-experience-discrimination-trying-to-use-bathrooms-34232263e6b3.

[229]. See generally Herman, supra note 224; Ford, supra note 228.

[230]. Shoshana Goldberg & Andrew Reynolds, The North Carolina Bathroom Bill Could Trigger a Health Crisis Among Transgender Youth, Research Shows, Wash. Post: Monkey Cage (Apr. 18, 2016), https://wapo.st/1S5q0px?tid=ss_tw-bottom&utm_term=.66bad834133f.

[231]. Complaint, supra note 211, at 9–10.

[232]. Goldberg & Reynolds, supra note 230.

[233]. Ford, supra note 228.

[234]. How A Poison Pill Worded As “Sex” Gave Birth to Transgender Rights, NPR: Politics (May 15, 2016, 7:36 AM), https://www.npr.org/2016/05/15/478075804/how-a-poison-pill-worded-as-sex-gave-birth-to-transgender-rights.

[235]. Mark Joseph Stern, How a 1964 Civil Rights Law Makes North Carolina’s Bathroom Bill Illegal, Slate: Outward (May 18, 2016, 10:14 AM), http://www.slate.com/blogs/outward/2016/05/18
/sex_discrimination_is_trans_discrimination_gilliam_thomas_explains.html. See generally Gillian Thomas, Because of Sex (2016) (discussing the inception of protection against sex discrimination in Title VII).

[236]. See generally Thomas, supra note 235.

[237]. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084, 1086 (7th Cir. 1984).

[238]. See, e.g., Ford, supra note 229.

[239]. See Elizabeth Bartholet, Proof of Discriminatory Intent Under Title VII: United States Postal Service Board of Governors v. Aikens, 70 Calif. L. Rev. 1201, 1202–03 (1982).

[240]. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954); Brief for NAACP Legal Defense and Educational Fund, Inc. and the Asian American Legal Defense and Education Fund as Amici Curiae in Support of Respondent, Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 1239 (2017) (No. 16-273).

[241]. See generally Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Williams Inst., Suicide Attempts Among Transgender and Gender Non-Conforming Adults (2014), https://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf.

[242]. See Questionable Questions About Transgender Identity, Nat’l Ctr. for Transgender Equality (Sept. 2, 2016), https://transequality.org/issues/resources/questionable-questions-about-transgender-identity.

[243]. See Vincent J. Samar, The Right to Privacy and the Right to Use the Bathroom Consistent with One’s Gender Identity, 24 Duke J. Gender L. & Pol’y 33, 55 (2016).

Negative Identity – Article by Nancy Leong

September 2015February 2018Kathryn Neubauer

From Volume 88, Number 5 (September 2015)
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This Article examines the social and legal status of “negative identity”—identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree.

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members experience significant animus, discrimination, and marginalization.

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Religious Exemptions, Stating Culture: Foreword to Religious Accommodations in the Age of Civil Rights – Religious Exemptions, Stating Culture: Foreword to Religious Accommodations in the Age of Civil Rights Download Article by Martha Minow

March 2015February 2018Katy Carlyle

From Volume 88, Number 3 (March 2015)
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“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local antidiscrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.

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Gerontology and the Law: A Selected Annotated Bibliography: 2009-2011 Update – Bibliography by Judy K. Davis & Karen Skinner

September 2013February 2018Colleen Bazak

From Volume 86, Number 6 (September 2013)
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This bibliography serves as the 2009–2011 update to Gerontology and the Law: A Selected Annotated Bibliography. First published in 1980 by Law Library Journal the bibliography has since been updated nine times between 1982 and 2010 in the Southern California Law Review. The original bibliography and the first five updates provided citations to a variety of books, articles, and other law related materials on various aspects of the law and gerontology. Starting with the sixth update, the style and content of the bibliography was changed in two ways: first, the bibliographers took a more selective approach in choosing resources to include and second, the bibliographers added annotations briefly describing the source after each citation.

For this update, the bibliographers chose a selection of scholarly books and articles discussing legal issues related to gerontology, aging, and the elderly in the United States published between the years 2009–2011. This bibliography does not include sources that are directed toward the general public, such as popular literature and self-help guides, and sources that do not deal with both law and gerontology. Other sources not included, some of which have been included in prior updates, are book reviews, newspaper articles, government documents, Congressional documents, conference proceedings, dissertations, and sources written in a language other than English. Although the focus of this 2009–2011 update is on the United States, a limited number of sources with an international or foreign perspective are included if deemed useful to researchers in the United States. Newer editions of older works are included if they were published between 2009–2011; however, if more than one edition was published between these dates, only the latest edition is included.

To locate sources to include in this bibliography, the bibliographers searched the following databases periodically from February 2013 to April 2013:

Ageline (produced by the American Association of Retired Person; searched via OvidSP or EBSCO) Journals and Law Reviews (Westlaw Classic database) Legal Resource Index (produced by the Information Access Company; searched via Westlaw Classic) Medline (produced by the National Library of Medicine; searched via OvidSP) Social Sciences Citation Index (produced by Thomson Reuters; searched via ISI Web of Knowledge) WorldCat (produced by OCLC Online Computer Library Center, Inc.; searched via OCLC FirstSearch) As with prior updates, the citations in the bibliography do not conform to The Bluebook: A Uniform System of Citation or to The Chicago Manual of Style. Instead, the citation format is a combination of the two styles and is consistent with previous updates of the bibliography.

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Racial Emotion in the Workplace – Article by Tristin K. Green

July 2013February 2018Colleen Bazak

From Volume 86, Number 5 (July 2013)
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Almost everyone in the United States is likely to experience or have experienced racial emotion in the workplace. One person feels uncomfortable making conversation with her coworkers of a different race for fear that she will use the wrong name or say something that is perceived as biased or offensive; another is anxious that his colleague will judge him as less intelligent than the whites on his team. One feels anger at the telling or emailing of a racial joke; another feels frustrated when a colleague raises concerns about bias during a postinterview debriefing. These emotions—and the behaviors that give rise to them and respond to them—are sometimes difficult to describe. We lack a language of racial emotion in the workplace, in no small part because many of us (especially whites) prefer not to see it. But racial emotion does exist, and we ignore it to the detriment not only of our individual relationships, but also of our visions and efforts for equality.

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Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity – Note by William C. Sung

January 2011February 2018Rachel Feldman

From Volume 84, Number 2 (January 2011)
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Michael P. Carney was a good cop. Since graduating from the police academy in 1982, he received numerous commendations for his outstanding work as a police officer and contributions to the community. He had been recognized for saving a man who had jumped from a bridge into the Connecticut River in a suicide attempt, apprehending a bank robber, and cofounding a youth mentorship program. He had worked as a police academy instructor, an aide to the chief of police, and a detective in the youth assessment center, the narcotics division, and the uniform division. But behind closed doors, he was tormented by the need to keep a secret for many years—Carney was gay.

For years Carney stayed in the closet out of fear of reprisal and being ostracized. He went to work every day afraid to talk about his personal life, including a date from the night before, his weekend, or his family. He went into every domestic or gun call thinking if he were gunned down, who would notify his life partner? Would his life partner learn of his death on the eleven o’clock news? How would his colleagues treat his life partner at his funeral? This fear led to years of isolation and heavy drinking, which took their toll; in 1989, beaten and defeated, Carney resigned from his post.

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INTRODUCTION

I. The Harm of Ideological Employment Denial

A. Four Traditional Approaches

B. Threats to Personal Integrity

C. Two Public Harms: Affective Polarization and Censorship

D. Summing Up

II. Intending to Change Behavior through Social Pressure

A. Corrupting Aims

B. Punitive Aims

III. Inadvertent Social Pressure and Employer Integrity

A. Non-Complicity

B. Employer Non-Association and Speech

IV. Inadvertent Social Pressure and Employer Economic Interests

A. Customer and Employee Retention

B. Workplace Efficiency

C. Merit

V. Final Reflections

A. Do We Need Legal Regulation?

B. Moral Uses of Social Pressure

C. Revisiting the Examples

D. But What About the Nazis?

99 S. Cal. L. Rev. 1

From Volume 91, Number 4 (May 2018) DOWNLOAD PDF

From Volume 88, Number 5 (September 2015) DOWNLOAD PDF

From Volume 88, Number 3 (March 2015) DOWNLOAD PDF

From Volume 86, Number 6 (September 2013) DOWNLOAD PDF

From Volume 86, Number 5 (July 2013) DOWNLOAD PDF

From Volume 84, Number 2 (January 2011) DOWNLOAD PDF

From Volume 91, Number 4 (May 2018)
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From Volume 88, Number 5 (September 2015)
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From Volume 88, Number 3 (March 2015)
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From Volume 86, Number 6 (September 2013)
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From Volume 86, Number 5 (July 2013)
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From Volume 84, Number 2 (January 2011)
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