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Aldo Palumbo
Toffoletto De Luca Tamajo e Soci, Milan
scp@toffolettodeluca.it

Giulia Marinoni
Toffoletto De Luca Tamajo e Soci, Milan
giulia.marinoni@toffolettodeluca.it

Introduction

The principles of equal treatment and non-discrimination have recently been in the spotlight, as social awareness of the need to protect specific categories of people has increased, particularly in the workplace.

Equal treatment and non-discrimination

Since the above-mentioned principles have a broad scope, every legal system may decline them differently. Consequently, there are no commonly shared definitions of equal treatment and non-discrimination.

Generally speaking, equal treatment can be considered the starting point, as it ensures that law provisions are applied equally to everyone, regardless of their race, social class, religion, gender, age or other characteristics. Non-discrimination, on the other hand, allows for the redress of inequalities in situations in which the application of equal treatment may, due to the characteristics of the individual involved, nevertheless lead to a disadvantageous situation, in comparison to others.

That said, some countries have a general principle of equal treatment in their constitutions, which simply says that discrimination is prohibited, while elsewhere employees can claim unequal treatment only if they belong to specific categories expressly protected by the law.

Not all countries protect the same categories against discrimination in the workplace. This is mainly due to the fact that it is not always easy to define the actions that constitute discrimination.

More precisely, employees should be protected from ‘wrongful’ or ‘unjust’ discrimination, since discrimination per se does not always lead to unjust treatment. On the other hand, employees can be treated equally and can still be subject to discrimination. Therefore, strict application of equal treatment principles may not be the solution. It is also not always unlawful to treat to employees differently.

The provisions against gender-based discrimination

Some categories of person have been subject to increasing protection in the workplace. Among them, women represent the category of employee that has been safeguarded at the most, at least until now. In this regard, many countries have enacted provisions fighting gender-based discrimination, in the form of forbidding a gender-based pay gap, unfair dismissal and unfair treatment in general.

In recent times, and in response to the large support that the #MeToo movement met, new laws have been enacted in many states to prevent sexual harassment in the workplace.

A broader interpretation of the existing legal provisions

As the social context is changing and minorities increasingly ask that their rights be recognised, it appears that a lack of provisions that can be invoked in defence of such rights.

While this deficiency does not constitute a problem in legal systems that apply a general notion of equal treatment unless discrimination is ascertained, in other legal systems it could be necessary to take kind of a detour. In the lack of specific provisions, could a possible protection against wrongful discrimination be the extension of the extant safeguards to other categories and minorities?

The EU approach on gender reassignment

In the European Union, the law has safeguarded an increasing number of protected categories over the years, especially in the workplace. Women were the first protected category; later on, provisions regarding race, ethnic origin, religion, sexual orientation, age and disability were approved.

In terms of expanding the forms of protection in force, whether gender reassignment can be protected through the provisions safeguarding gender discrimination has been subject to controversy. With reference to the case C-13/94, the Court of Justice of the European Union (CJEU) has been addressed to clarify whether, with regard to the purpose of the Council Directive 76/207/EEC (on the implementation of the principle of equal treatment for men and women as regards access to employment; vocational training and promotion; and working conditions, henceforth, ‘the Directive’), Article 5(1) precludes dismissal of a transsexual for a reason related to his or her gender reassignment.

As point of reference, the Court adopted the definition of ‘transsexual’ as defined by the European Court of Human Rights (ECtHR), which has held that:

‘the term "transsexual” is usually applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature’.

On this basis, the judging body indicated that the principle of equal treatment ‘for men and women’, to which the Directive refers, means that there should be no discrimination whatsoever on grounds of sex. Thus, the Directive is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of EU law. Moreover, the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure.

Accordingly, the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex, but also to discrimination arising from the gender reassignment of the person concerned. Therefore, if an individual is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he/she is being treated unfavourably by comparison to people of the sex to which he or she was deemed to belong before undergoing gender reassignment. Tolerating such discrimination would be a failure to respect the dignity and freedom to which the individual is entitled, and which the Court has a duty to safeguard.

Finally, pulling it all together, the Court states that, in view of the objective pursued by the Directive, Article 5(1) of the Directive precludes dismissal of a transsexual individual for a reason related to gender reassignment.

Since the Court did not specify what gender reassignment stands for, for instance by requiring surgery, it has been assumed that it could be interpreted broadly

Despite such initial opening, in a more recent report from 2018, the EU Commission took a step back and observed that the ruling of the Court is limited by the scope of the legislation concerned, so its importance should not be overstated. Therefore, ‘if the CJEU is going to safeguard a wider category of trans equality rights, this can only come through greater recognition of trans people’s rights, initially within the core treaty documents (eg incorporating ‘gender identity’ and ‘gender expression’ into Article 19 Treaty on the Functioning of the EU) and then in secondary legislation’.

The Commission pointed out, as well, that the CJEU’s decisions do not cover non-binary individuals:

‘Anchoring trans equality within the concept of sex, and particularly gender confirmation, the Court appears to prefer a more rigid, dichotomous framework for protection. As increasing numbers of trans people – particularly young people – experience unequal treatment because they experience and express gender identities outside male and female categories, it remains to be seen whether EU sex equality law, in its current formulation, has the capacity to accommodate and safeguard gender beyond the binary’.

These comments are interesting, since the CJEU has, in other cases regarding discrimination, been reluctant to apply a broad interpretation of the categories explicitly protected under EU law, as in ruling about the protection offered to employees during pregnancy, which historically has been applied only to women and could leave pregnant (trans) men unprotected.

The US approach

In the United States there is no universally shared concept of equal treatment, as US federal law focuses on prohibiting unequal treatment on the basis of a protected category. Moreover, statutes and case law governing equal treatment vary across the US, in many instances extending protections in place to other unprotected categories of employee.

A fundamental provision is Title VII of the Civil Rights Act, which makes it unlawful for an employer to fail or refuse to hire, fire, or otherwise discriminate against an individual in terms of compensation or other terms, conditions, or privileges of employment, on the basis of (among other categories) the individual’s gender. Federal courts, agencies, and state legislatures show a different approach to the scope of such protections.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing federal employment anti-discrimination laws, has the authority to investigate charges of discrimination against employers; to file lawsuits in order to protect the rights of individuals and the interests of the public; and to assure the compliance of federal agencies and departments with the relevant regulations. According to the EEOC, discrimination based on sexual orientation and/or gender identity is a form of sex discrimination and is thus unlawful under Title VII. The courts are otherwise split on this issue.

In a landmark ruling issued 15 June 2020, the US Supreme Court ruled on a trio of cases squarely raising the question of whether discrimination on the basis of sexual orientation or gender identity is unlawful sex discrimination under Title VII.

The R.G. & G.R. Harris Funeral Homes v Equal Employment Opportunity Commission (No. 18-107) case raised the question of whether Title VII protects transgender and transitioning employees. The case was first ruled in 2016 by the US District Court for the Eastern District of Michigan, which stated that neither transgender people nor gender identity are protected classes under Title VII. In March 2018, the US Court of Appeals for the Sixth Circuit reversed that decision.

The other two cases raised the question of whether the prohibition against sex discrimination under Title VII includes discrimination based on sexual orientation. The two addressed US Circuit Courts of Appeal decided differently on the issue. 

The Altitude Express, Inc. v Zarda case (No. 17-1623) (previously named Zarda v Altitude Express) was initially heard in US District Court for the Eastern District of New York in 2014. While the case was in progress, the EEOC issued a non-binding memo in 2015 declaring that it would treat sexual orientation as covered by Title VII. This aligned with a prior non-binding memo from the Department of Justice (DoJ), which stated that it would also treat sexual orientation as protected under Title VII, should such cases be presented to them. Despite these federal memos, the District Court summarily ruled in favour of Altitude Express.

The decision was appealed before the US Court of Appeals for the Second Circuit. In the meantime, under the Trump administration, the DoJ reversed its orientation regarding the protection granted by Title VII for sexual orientation, asserting in a new memo that, while significant cultural shifts had occurred since the passage of the Civil Rights Act, Congress had not amended the law in anyway. It thus denied that Title VII protected against sexual orientation discrimination, stating that the DoJ had ‘substantial and unique interest’ to follow the letter of the law.

The EEOC did not change its previous orientation. This placed the two agencies at odds. The Second Circuit confirmed the District Court's ruling in 2017, agreeing that sexual orientation was not covered by Title VII, but the full Second Court later reversed the decision, asserting that Title VII prohibits sexual orientation employment discrimination under the category of sex.

The third case, Bostock v Clayton County, Georgia (No. 17-1618), was initially ruled in 2016 by the US District Court for the Northern District of Georgia, which declared that Title VII of the Civil Rights Act does not include protection against discrimination towards sexual orientation. In 2018, the three-judge panel of the Eleventh Circuit confirmed the District Court's ruling.

Because of its conservative background, the Supreme Court was expected to decide the cases by ruling that the Civil Rights Act does not ban discrimination against LGBT+ people.

Surprisingly, in its June ruling, the Supreme Court instead held that Title VII’s prohibition against sex-based discrimination in employment covers discrimination based on sexual orientation and gender identity-based as well. Even more surprisingly, the majority was reached in a 6–3 decision, with the backing of two conservative Justices.

In particular, in the Opinion of the Court, Justice Neil Gorsuch (nominated by President Donald Trump on 31 January 2017) wrote that:

‘in Title VII, Congress adopted broad language making it illegal for an employer to  rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law’.

To reach this conclusion, the Court pointed out that homosexuality and transgender status are distinct concepts from sex, but discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex: the first cannot happen without the second. Especially, as stated in the Opinion:

‘an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids’.

Furthermore, the Supreme Court clarified that ‘the employee’s sex need not be the sole or primary cause of the employer’s adverse action’.

Conclusions

While protecting ever more categories of person against discrimination in the workplace appears to be a common trend, it is as yet unclear whether this goal can be reached by extending the scope and application of existing provisions. The difficulties (as shown by court decisions) in carrying out the activity of interpreting/extending current laws, which can in turn lead to controversial rulings, may push each legal system to enact new laws, more focused on specific categories of employee, maybe even taking inspiration from the good practices adopted by the policies of large multinational enterprises.

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