What constitutes unlawful discrimination on the basis of sex under Title VII? As two recent federal court rulings indicate, progressives will give an unnaturally stingy reading of Title VII when men (or men qua men, I suppose I must say) allege discrimination and an adventuresomely expansive reading when members of their favored constituencies do so.
Compare and contrast:
1. Last week, in Bauer v. Lynch, a Fourth Circuit panel ruled against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.
Bauer failed the FBI’s physical-fitness test (“PFT”)—a sequence of sit-ups, a sprint, push-ups, and a 1.5 mile run—when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum is only 14 (and the other thresholds are also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” Easy victory, right? The federal district court granted summary judgment in his favor.
But the Fourth Circuit panel of Obama and Clinton appointees somehow saw things very differently. The Fourth Circuit accepted the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”
The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids.
2. Yesterday, a federal district judge in Minnesota (a Clinton appointee) entered a consent decree in EEOC v. Deluxe Financial Services that awards $115,000 and other relief to a man who identifies as a woman on the EEOC’s claim that his employer discriminated against him on the basis of sex.
The consent decree reflects the EEOC’s (and, it would seem, the judge’s) embrace of the transgender ideology. Thus, for example, the judge recites in the first paragraph the EEOC’s allegation that Deluxe Financial subjected the employee to mistreatment “because of her sex, including because [the employee] is a woman who is transgender” and because of Deluxe Financial’s “sex or gender-based expectations or stereotypes related to individuals assigned the male sex at birth.” (So much here for any “innate physiological differences” between men and women.)
The consent decree also reflects the EEOC’s, and the judge’s, embrace of the claim that discrimination on the basis of sex includes discrimination on the basis of “transgender status.” (The EEOC identifies this claim as “a top [EEOC] priority.”) So much for the transgender insistence, in other contexts, that the concept of gender is fundamentally different from the concept of sex. (And, on this understanding of Title VII, wouldn’t an employer also be discriminating on the basis of sex by forbidding men who identify as men from using the women’s restroom while allowing men who identify as women to do so?)
It’s a safe bet that the EEOC drafted the consent decree (an informed source confirms that’s the EEOC’s modus operandi) and that Deluxe Financial didn’t have the stomach or resources to defend itself against a federal agency that does not care about the costs of litigation and wants to litigate to “make new law.”