Thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.
The Trump Justice Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.
It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.