MBA 650 Managerial Responsibility and the Law

For step 1 of this paper,you were provided four precedent cases to discuss and apply to your dilemma involving the Angelus Funeral Home. These are listed below:

1. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)
2. Bostock v. Clayton Cty., Georgia, 723 F.Appx. 964 (11th Cir. 2018)
3. Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020)

Peltier v. Charter Day Sch., Inc., 37 F.4th 104 (4th Cir. 2022), cert. denied, 143 S. Ct. 2657 (2023)

To earn points for the Step 1 legal analysis of your dilemma, you will need to discuss the four precedent cases provided and explain how they might apply to your dilemma. Jespersen (#1) and Bostock (#3), in particular, should be thoroughly discussed, including how those courts ruled on the sex discrimination theories of (a) unequal burdens; (b) sex stereotyping; and (c) but-for causation.

The cases are attached in PDF’s. The dilemma of the Angelus Funeral Home you apply it to is below:

Angelus Funeral Home Dilemma

Your father, the owner of the Angelus Funeral Home in Los Angeles, California, recently passed away. In his will, your father left you a house in Malibu and his entire interest in the Angelus Funeral Home. For the past twenty years, the funeral home has been managed by a female employee named Rhonda. After speaking with the Human Resources Director of your funeral home, you have discovered that Rhonda has been an excellent employee, but that customers have often complained of Rhonda’s unprofessional appearance. Specifically, numerous complaints have been lodged against Rhonda for being “too casual” in her clothing selection, given that she often presents herself wearing “baggie clothing” that customers find appropriate “only for a pajama party.” These complaints, which have now been showing up on social media with greater frequency, are negatively impacting your funeral home’s business.

To address this issue, you are considering implementing an employee dress code that would require all public-facing funeral home employees to wear professional attire. The dress code you are contemplating would require women, including Rhonda, to wear makeup and to style their hair in a professional manner. The dress code would further require men to wear suits and ties and to keep their hair cut short, specifically, no longer than the top of their shirt collar. It would also prohibit all male employees from wearing makeup.

You are aware that the United States Supreme Court recently weighed in on the issue of dress codes for funeral homes in the case of R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (decided as part of the Supreme Court’s opinion in Bostock v. Clayton County, Georgia). Although you don’t know much about the Harris case, you read in the news that a male employee of the funeral home involved in that case successfully sued the funeral home for being fired after expressing his desire to wear dresses and makeup at work. Accordingly, you are concerned that your dress code, while innocent enough, could potentially lead to a costly discrimination lawsuit. Nevertheless, since Rhonda identifies as female, her biological sex, you are not truly concerned about her suing you for discrimination in the event you implement a sex-differentiated dress code for funeral home employees.

Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)
[This opinion has been edited by the author to provide focus on the key elements. Edits are indicated through brackets [] or through ***.
In addition, certain language has been bolded or underlined for emphasis. Unless otherwise indicated, all footnotes have been omitted. In
addition, case citations have been omitted or edited to conform to BlueBook citation requirements].
SCHROEDER, Chief Judge.
*** The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in
Harrah’s Reno casino not long after Harrah’s began to enforce its comprehensive uniform, appearance
and grooming standards for all bartenders. The standards required all bartenders, men and women, to
wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. The
standards also included grooming requirements that differed to some extent for men and women,
requiring women to wear some facial makeup and not permitting men to wear any. Jespersen
refused to comply with the makeup requirement and was effectively terminated for that reason.
*** We agree with the [courts below] that on this record, Jespersen has failed to present evidence
sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on
women. With respect to sex stereotyping, we hold that appearance standards, including makeup
requirements, may well be the subject of a Title VII claim for sexual stereotyping, but that on this record
Jespersen has failed to create any triable issue of fact that the challenged policy was part of a policy
motivated by sex stereotyping. We therefore affirm.
I. BACKGROUND
Plaintiff Darlene Jespersen worked successfully as a bartender at Harrah’s for twenty years and
compiled what by all accounts was an exemplary record. *** In February 2000, Harrah’s implemented a
“Beverage Department Image Transformation” program at twenty Harrah’s locations, including its
casino in Reno. Part of the program consisted of new grooming and appearance standards, called the
“Personal Best” program. The program contained certain appearance standards that applied equally to
both sexes, including a standard uniform of black pants, white shirt, black vest, and black bow tie. ***
The program also contained some sex-differentiated appearance requirements as to hair, nails, and
makeup.
In April 2000, Harrah’s amended that policy to require that women wear makeup. Jespersen’s
only objection here is to the makeup requirement. The amended policy provided in relevant part:
All Beverage Service Personnel *** must be well groomed, appealing to the eye, be firm and body
toned, and be comfortable with maintaining this look while wearing the specified uniform.***
Beverage Bartenders and Barbacks will adhere to these additional guidelines:
• Overall Guidelines (applied equally to male/ female):
• Appearance: Must maintain Personal Best image portrayed at time of hire.
• Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large
chokers, chains or bracelets.
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• No faddish hairstyles or unnatural colors are permitted.
• Males:
• Hair must not extend below top of shirt collar.
Ponytails are prohibited.
• Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is
permitted.
• Eye and facial makeup is not permitted.
• Shoes will be solid black leather or leather type with rubber (non skid) soles.
• Females:
• Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times,
no exceptions.
• Stockings are to be of nude or natural color consistent with employee’s skin tone. No runs.
• Nail polish can be clear, white, pink or red color only. No exotic nail art or length.
• Shoes will be solid black leather or leather type with rubber (non skid) soles.
• Make up (face powder, blush and mascara) must be worn and applied neatly in
complimentary colors. Lip color must be worn at all times.
Jespersen did not wear makeup on or off the job, and in her deposition stated that wearing it would
conflict with her self-image. It is not disputed that she found the makeup requirement offensive, and felt
so uncomfortable wearing makeup that she found it interfered with her ability to perform as a bartender.
Unwilling to wear the makeup, and not qualifying for any open positions at the casino with a similar
compensation scale, Jespersen left her employment with Harrah’s.
After *** obtaining a right to sue [letter from the EEOC], Jespersen filed this action in July 2001. In her
complaint, Jespersen [alleged] that the “Personal Best” policy discriminated against women by “(1)
subjecting them to terms and conditions of employment to which men are not similarly subjected, and
(2) requiring that women conform to sex-based stereotypes as a term and condition of employment.”
Harrah’s moved for summary judgment [and] argued that the policy created similar standards for both
men and women, and that where the standards differentiated on the basis of sex, as with the face and
hair standards, any burdens imposed fell equally on both male and female bartenders.
In her deposition testimony***, Jespersen described the personal indignity she felt as a result of
attempting to comply with the makeup policy. Jespersen testified that when she wore the makeup she
2
“felt very degraded and very demeaned.” In addition, Jespersen testified that “it prohibited [her] from
doing [her] job” because “[i]t affected [her] self-dignity … [and] took away [her] credibility as an
individual and as a person.” ***
The record *** does not contain any affidavit or other evidence to establish that complying with the
“Personal Best” standards caused burdens to fall unequally on men or women, and there is no evidence
to suggest Harrah’s motivation was to stereotype the women bartenders. Jespersen relied solely on
evidence that she had been a good bartender, and that she had personal objections to complying with the
policy, in order to support her argument that Harrah’s “ ‘sells’ and exploits its women employees.” ***
In this appeal, Jespersen maintains that the record before the district court was sufficient to create triable
issues of material fact as to her unlawful discrimination claims of unequal burdens and sex stereotyping.
We deal with each in turn.
II. UNEQUAL BURDENS
In order to assert a valid Title VII claim for sex discrimination, a plaintiff must make out a prima facie
case establishing that the challenged employment action was either intentionally discriminatory or that it
had a discriminatory effect on the basis of gender. *** In this case, Jespersen argues that the makeup
requirement itself establishes a prima facie case of discriminatory intent***. Our settled law in this
circuit, however, does not support Jespersen’s position***.
***In Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000), we dealt with a weight policy that
applied different standards to men and women in a facially unequal way. The women were forced to
meet the requirements of a medium body frame standard while men were required to meet only the more
generous requirements of a large body frame standard. In that case, we recognized that “[a]n appearance
standard that imposes different but essentially equal burdens on men and women is not disparate
treatment.” The United weight policy, however, did not impose equal burdens. On its face, the policy
embodied a requirement that categorically “‘applie[d] less favorably to one gender[,]’” and the burdens
imposed upon that gender were obvious from the policy itself. [citations in the previous paragraph
omitted].
This case stands in marked contrast, for here we deal with requirements that, on their face, are not more
onerous for one gender than the other. Rather, Harrah’s “Personal Best” policy contains sexdifferentiated requirements regarding each employee’s hair, hands, and face. While those individual
requirements differ according to gender, none on its face places a greater burden on one gender
than the other. Grooming standards that appropriately differentiate between the genders are not
facially discriminatory.
We have long recognized that companies may differentiate between men and women in appearance and
grooming policies, and so have other circuits. [Editor’s Note: Here, the court cited cases from seven
different federal circuit courts of appeal]. The material issue under our settled law is not whether the
policies are different, but whether the policy imposed on the plaintiff creates an “unequal burden” for
the plaintiff’s gender. [citations omitted]. Not every differentiation between the sexes in a grooming and
appearance policy creates a “significantly greater burden of compliance[.]” [citation omitted]. For
example, in Fountain, this court upheld Safeway’s enforcement of its sex-differentiated appearance
standard, including its requirement that male employees wear ties, because the company’s actions in
enforcing the regulations were not “overly burdensome to its employees [.]” [citations omitted].
Similarly, as the Eighth Circuit has recognized, “[w]here, as here, such [grooming and appearance]
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policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences
in the appearance requirements for males and females have only a negligible effect on employment
opportunities.” [citation omitted]. Under established equal burdens analysis, when an employer’s
grooming and appearance policy does not unreasonably burden one gender more than the other, that
policy will not violate Title VII.
Jespersen [argues] that it costs more money and takes more time for a woman to comply with the
makeup requirement than it takes for a man to comply with the requirement that he keep his hair short,
but these are not matters appropriate for judicial notice. [Moreover,] Jespersen did not submit any
documentation or any evidence of the relative cost and time required to comply with the grooming
requirements by men and women. As a result, we would have to speculate about those issues in order to
then guess whether the policy creates unequal burdens for women. This would not be appropriate.
[citations omitted].
Having failed to create a record establishing that the “Personal Best” policies are more burdensome for
women than for men, Jespersen did not present any triable issue of fact. The district court correctly
granted summary judgment on the record before it with respect to Jespersen’s claim that the makeup
policy created an unequal burden for women.
III. SEX STEREOTYPING
In Price Waterhouse, *** the plaintiff, Ann Hopkins, was denied partnership in the national accounting
firm of Price Waterhouse because some of the partners found her to be too aggressive. [As a result of
Price Waterhouse,] a plaintiff in a Title VII case may introduce evidence that the employment decision
was made in part because of a sex stereotype. [citation omitted]. According to the Court, this is because
“we are beyond the day when an employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group.”*** It was therefore impermissible for Hopkins’s
employer to place her in an untenable Catch-22: she needed to be aggressive and masculine to excel at
her job, but was denied partnership for doing so because of her employer’s gender stereotype. Instead,
Hopkins was advised to “‘walk more femininely, talk more femininely, dress more femininely, wear
make up, have her hair styled, and wear jewelry.’” [citation omitted].
The stereotyping in Price Waterhouse interfered with Hopkins’ ability to perform her work; the
advice that she should take “a course at charm school” was intended to discourage her use of the
forceful and aggressive techniques that made her successful in the first place. [citation omitted].
Impermissible sex stereotyping was clear because the very traits that she was asked to hide were
the same traits considered praiseworthy in men.
Harrah’s “Personal Best” policy is very different. The policy does not single out Jespersen. It applies to
all of the bartenders, male and female. It requires all of the bartenders to wear exactly the same uniforms
while interacting with the public in the context of the entertainment industry. It is for the most part
unisex, from the black tie to the non-skid shoes. There is no evidence in this record to indicate that the
policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of
what women should wear. The record contains nothing to suggest the grooming standards would
objectively inhibit a woman’s ability to do the job. The only evidence in the record to support the
stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement.
*** We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the
world. We cannot agree, however, that her objection to the makeup requirement, without more, can give
4
rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close
to holding that every grooming, apparel, or appearance requirement that an individual finds personally
offensive, or in conflict with his or her own self-image, can [amount to] sex discrimination.
This is not a case where the dress or appearance requirement is intended to be sexually provocative, and
tending to stereotype women as sex objects.*** Jespersen’s claim here materially differs from Hopkins’
claim in Price Waterhouse because Harrah’s grooming standards do not require Jespersen to conform to
a stereotypical image that would objectively impede her ability to perform her job requirements as a
bartender.***
AFFIRMED.
[dissenting opinions omitted].
5
Bostock v. Clayton County Board of Commissioners, 723 Fed.Appx. 964 (2018)
2018 Fair Empl.Prac.Cas. (BNA) 166,607
KeyCite Red Flag – Severe Negative Treatment
Reversed and Remanded by Bostock v. Clayton County, Georgia, U.S., June
15, 2020
723 Fed.Appx. 964 (Mem)
This case was not selected for
publication in West’s Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally
governing citation of judicial decisions issued on or after
Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2.
United States Court of Appeals, Eleventh Circuit.
Gerald Lynn BOSTOCK, Plaintiff-Appellant,
v.
CLAYTON COUNTY BOARD OF
COMMISSIONERS, Defendant,
Clayton County, Defendant-Appellee.
No. 17-13801
|
Non-Argument Calendar
|
(May 10, 2018)
Attorneys and Law Firms
Thomas J. Mew, IV, Timothy Brian Green, Brian J.
Sutherland, Buckley Beal, LLP, Atlanta, GA, for PlaintiffAppellant
Jack Reynolds Hancock, Freeman Mathis & Gary, LLP,
Forest Park, GA, William Hollis Buechner, Jr., Martin B.
Heller, Freeman Mathis & Gary, LLP, Atlanta, GA, for
Defendant-Appellee
Appeal from the United States District Court for the Northern
District of Georgia, D.C. Docket No. 1:16-cv-01460-ODE
Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges.
Opinion
PER CURIAM:
Gerald Lynn Bostock appeals the district court’s dismissal
of his employment discrimination suit under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), against
Clayton County, Georgia, for failure to state a claim. On
appeal, Bostock argues that the County discriminated against
him based on sexual orientation and gender stereotyping.
After a careful review of the record and the parties’ briefs, we
affirm.
“We review de novo the district court’s grant of a motion to
dismiss under [Fed. R. Civ. P.] 12(b)(6) for failure to state a
claim, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per
curiam). Issues not briefed on appeal are deemed abandoned.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per
curiam).
Title VII prohibits employers from discriminating against
employees on the basis of their sex. 42 U.S.C. § 2000e-2(a).
This circuit has previously held that “[d]ischarge for
homosexuality is not prohibited by Title VII.” Blum v. Gulf
Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)1 (per curiam)
(emphasis added). And we recently confirmed that Blum
remains binding precedent in this circuit. See Evans v. Ga.
Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert.
denied, ––– U.S. ––––, 138 S.Ct. 557, 199 L.Ed.2d 446
(2017). In Evans, we specifically rejected the argument
that Supreme Court precedent in Oncale v. Sundowner
Offshore Servs., 523 U.S. 75, 79, 118 S.Ct. 998, 140
L.Ed.2d 201 (1998), *965 and Price Waterhouse v. Hopkins,
490 U.S. 228, 250–51, 109 S.Ct. 1775, 104 L.Ed.2d 268
(1989), supported a cause of action for sexual orientation
discrimination under Title VII.
As an initial matter, Bostock has abandoned any challenge
to the district court’s dismissal of his gender stereotyping
claim under Glenn2 because he does not specifically appeal
the dismissal of this claim. See Timson, 518 F.3d at 874.
Moreover, the district court did not err in dismissing
Bostock’s complaint for sexual orientation discrimination
under Title VII because our holding in Evans forecloses
Bostock’s claim. And under our prior panel precedent rule, we
cannot overrule a prior panel’s holding, regardless of whether
we think it was wrong, unless an intervening Supreme Court
or Eleventh Circuit en banc decision is issued. United States
v. Kaley, 579 F.3d 1246, 1255–56 (11th Cir. 2009); United
States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en
banc).
AFFIRMED.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
1
Bostock v. Clayton County Board of Commissioners, 723 Fed.Appx. 964 (2018)
2018 Fair Empl.Prac.Cas. (BNA) 166,607
All Citations
723 Fed.Appx. 964 (Mem), 2018 Fair Empl.Prac.Cas. (BNA)
166,607
Footnotes
1
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions of the “old Fifth”
Circuit handed down prior to the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit).
2
In analyzing an equal protection claim, rather than a Title VII claim, we held that discrimination based on gender
nonconformity was sex discrimination. Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011).
End of Document
© 2023 Thomson Reuters. No claim to original U.S.
Government Works.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
2
Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020)
[This opinion has been edited by the author for educational use. Edits are indicated through brackets [] or through
the following: ***. In addition, certain language has been bolded or underlined for emphasis. Unless otherwise
indicated, all footnotes have been omitted. In addition, certain case citations have been edited to conform to
BlueBook citation requirements].
Opinion
Justice GORSUCH delivered the opinion of the Court. [The Court split 6-3 in its decision.
Justice Gorsuch’s majority opinion was joined by Chief Justice Roberts, as well as Justices
Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito wrote a dissenting opinion, in which
Justice Thomas joined. Justice Kavanaugh also filed a dissenting opinion.]
*** In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of
1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race,
color, religion, sex, or national origin. Today, we must decide whether an employer can fire
someone simply for being homosexual or transgender. 1 The answer is clear. 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.***
I
Few facts are needed to appreciate the legal question we face. Each of the three cases before us
started the same way: An employer fired a long-time employee shortly after the employee revealed
that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s
homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his
leadership, the county won national awards for its work. After a decade with the county, Mr.
Bostock began participating in a gay recreational softball league. Not long after that, influential
members of the community allegedly made disparaging comments about Mr. Bostock’s sexual
orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county
employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several
seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When
she got the job, Ms. Stephens presented as a male. *** In her sixth year with the company, Ms.
Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as
[Editor’s Note: In this case, the Supreme Court refused to decide whether sex-differentiated dress codes violate
Title VII. See Bostock, 140 S. Ct. at 1753. Rather, the Court considered “only . . . whether an employer who fires
someone simply for being homosexual or transgender has discharged or otherwise discriminated against that
individual ‘because of such individual’s sex.’” Id.]
1
1
a woman” after she returned from an upcoming vacation. The funeral home fired her before she
left, telling her “this is not going to work out.”
While these cases began the same way, they ended differently. Each employee brought suit under
Title VII alleging unlawful discrimination on the basis of sex. In Mr. Bostock’s case, the Eleventh
Circuit held that the law does not prohibit employers from firing employees for being gay and so
his suit could be dismissed as a matter of law. Meanwhile, in Mr. Zarda’s case, the Second Circuit
concluded that sexual orientation discrimination does violate Title VII and allowed his case to
proceed. *** [T]he Sixth Circuit reached a decision along the same lines as the Second Circuit’s,
holding that Title VII bars employers from firing employees because of their transgender status.
*** [W]e granted certiorari in these matters to resolve at last the disagreement among the
courts of appeals over the scope of Title VII’s protections for homosexual and transgender
persons.
II
This Court normally interprets a statute in accord with the ordinary public meaning of its
terms at the time of its enactment. After all, only the words on the page constitute the law
adopted by Congress and approved by the President.***
With this in mind, our task is clear. We must determine the ordinary public meaning of Title
VII’s command that it is “unlawful … for an employer to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” [42 U.S.C. § 2000e–2(a)(1)]. To do so, we orient
ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory
terms in turn before assessing their impact on the cases at hand and then confirming our work
against this Court’s precedents.
A
The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the
primary term in Title VII whose meaning the parties dispute. Appealing to roughly
contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred
to “status as either male or female [as] determined by reproductive biology.” The employees
counter by submitting that, even in 1964, the term bore a broader scope, capturing more than
anatomy and reaching at least some norms concerning gender identity and sexual orientation. But
because nothing in our approach to these cases turns on the outcome of the parties’ debate, and
because the employees concede the point for argument’s sake, we proceed on the assumption
that “sex” signified what the employers suggest, referring only to biological distinctions
between male and female.
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII
says about it. Most notably, the statute prohibits employers from taking certain actions
“because of” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because
of’ is ‘by reason of’ or ‘on account of.’” In the language of law, this means that Title VII’s “because
2
of” test incorporates the “‘simple’” and “traditional” standard of but-for causation. That form of
causation is established whenever a particular outcome would not have happened “but for”
the purported cause. In other words, a but-for test directs us to change one thing at a time
and see if the outcome changes. If it does, we have found a but-for cause.[2]
*** Often, events have multiple but-for causes. So, for example, if a car accident occurred both
because the defendant ran a red light and because the plaintiff failed to signal his turn at the
intersection, we might call each a but-for cause of the collision. When it comes to Title VII, the
adoption of the traditional but-for causation standard means a defendant cannot avoid
liability just by citing some other factor that contributed to its challenged employment
decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough
to trigger the law.
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it
could have added “solely” to indicate that actions taken “because of” the confluence of multiple
factors do not violate the law. Cf. 11 U.S.C. § 525; 16 U.S.C. § 511. Or it could have written
“primarily because of” to indicate that the prohibited factor had to be the main cause of the
defendant’s challenged employment decision. Cf. 22 U.S.C. § 2688. But none of this is the law we
have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991
to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating
factor” in a defendant’s challenged employment practice. [42 U.S.C. § 2000e–2(m)]. Under this
more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the
employer’s challenged decision. Still, because nothing in our analysis depends on the
motivating factor test, we focus on the more traditional but-for causation standard that
continues to afford a viable, if no longer exclusive, path to relief under Title VII. § 2000e–
2(a)(1).
As sweeping as even the but-for causation standard can be, Title VII does not concern itself with
everything that happens “because of” sex. The statute imposes liability on employers only when
they “fail or refuse to hire,” “discharge,” “or otherwise … discriminate against” someone because
of a statutorily protected characteristic like sex. The employers acknowledge that they discharged
the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item
on it: “otherwise … discriminate against.” By virtue of the word otherwise, the employers
suggest, Title VII concerns itself not with every discharge, only with those discharges that
involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did
“discriminate” mean in 1964? As it turns out, it meant then roughly what it means today:
“To make a difference in treatment or favor (of one as compared with others).” Webster’s
New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then,
would seem to mean treating that individual worse than others who are similarly situated. In
so-called “disparate treatment” cases like today’s, this Court has also held that the difference in
treatment based on sex must be intentional. So, taken together, an employer who intentionally
[Editor’s Note: In this passage, Justice Gorsuch has set up his subsequent reasoning where he will show that when
a gay or transgender employee’s sex is changed, the outcome changes, making the employee’s sex a “but for” cause
of the employer’s adverse employment action].
2
3
treats a person worse because of sex—such as by firing the person for actions or attributes
it would tolerate in an individual of another sex—discriminates against that person in
violation of Title VII.
At first glance, another interpretation might seem possible. Discrimination sometimes involves
“the act, practice, or an instance of discriminating categorically rather than individually.”
Webster’s New Collegiate Dictionary 326 (1975). On that understanding, the statute would require
us to consider the employer’s treatment of groups rather than individuals, to see how a policy
affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal too.
Maybe the law concerns itself simply with ensuring that employers don’t treat women generally
less favorably than they do men. So how can we tell which sense, individual or group,
“discriminate” carries in Title VII?
The statute answers that question directly. It tells us three times—including immediately
after the words “discriminate against”—that our focus should be on individuals, not groups:
Employers may not “fail or refuse to hire or … discharge any individual, or otherwise …
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s … sex.” § 2000e–2(a)(1) (emphasis
added). *** Here, again, Congress could have written the law differently. It might have said that
“it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the
terms or conditions of employment.” It might have said that there should be no “sex
discrimination,” perhaps implying a focus on differential treatment between the two sexes as
groups. More narrowly still, it could have forbidden only “sexist policies” against women as a
class. But, once again, that is not the law we have.
The consequences of the law’s focus on individuals rather than groups are anything but
academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no
defense for the employer to note that, while he treated that individual woman worse than he
would have treated a man, he gives preferential treatment to female employees overall. The
employer is liable for treating this woman worse in part because of her sex. Nor is it a defense
for an employer to say it discriminates against both men and women because of sex. This statute
works to protect individuals of both sexes from discrimination, and does so equally. So an
employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man,
Bob, for being insufficiently masculine may treat men and women as groups more or less equally.
But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title
VII exposure, this employer doubles it.
B
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a
straightforward rule emerges: An employer violates Title VII when it intentionally fires an
individual employee based in part on sex. It doesn’t matter if other factors besides the
plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated
women as a group the same when compared to men as a group. If the employer intentionally
relies in part on an individual employee’s sex when deciding to discharge the employee—put
differently, if changing the employee’s sex would have yielded a different choice by the
4
employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”:
An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of
employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple and momentous: An individual’s
homosexuality or transgender status is not relevant to employment decisions. That’s because
it is impossible to discriminate against a person for being homosexual or transgender without
discriminating against that individual based on sex.
Consider, for example, an employer with two employees, both of whom are attracted to men. The
two individuals are *** materially identical in all respects, except that one is a man and the other
a woman. If the employer fires the male employee for no reason other than the fact he is
attracted to men, the employer discriminates against him for traits or actions it tolerates in
his female colleague.[3] Put differently, the employer intentionally singles out an employee to
fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his
discharge. Or take an employer who fires a transgender person who was identified as a male at
birth but who now identifies as a female. If the employer retains an otherwise identical employee
who was identified as female at birth, the employer intentionally penalizes a person identified as
male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again,
the individual employee’s sex plays an unmistakable and impermissible role in the discharge
decision.
That distinguishes these cases from countless others where Title VII has nothing to say. Take an
employer who fires a female employee for tardiness or incompetence or simply supporting the
wrong sports team. Assuming the employer would not have tolerated the same trait in a man,
Title VII stands silent. But unlike any of these other traits or actions, homosexuality and
transgender status are inextricably bound up with sex. [This is] because to discriminate on these
grounds requires an employer to intentionally treat individual employees differently because of
their sex.
Nor does it matter that, when an employer treats one employee worse because of that
individual’s sex, other factors may contribute to the decision. Consider an employer with a
policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an
employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would
have tolerated the same allegiance in a male employee.[4] Likewise here. When an employer fires
[Editor’s Note: To illustrate how sexual orientation discrimination is a form of sex discrimination, the Court
references comparators consisting of male and female employees who are each “attracted to men.” Although the
Court did not mention the sex-plus discrimination theory, this type of discrimination – targeting only a select
subgroup of men (i.e., those attracted to men) – can be viewed as a form of sex-plus discrimination. This, at least,
was the essence of Professor McAllister’s argument in the following article: Marc C. McAllister, Sexual
Orientation Discrimination as a Form of Sex-Plus Discrimination, 67 Buff. L. Rev. 1007 (2019). It is unclear
whether the Court was aware of Professor McAllister’s argument at the time it wrote this opinion, but the
similarities are striking].
4
[Editor’s note: The Court’s example, being fired for being a woman and a Yankees fan, where a male employee
who is also a Yankees fan would not be fired, is essentially an example of sex-plus discrimination. Interestingly,
however, the “plus” factor in this example – being a Yankees fan – is not an immutable characteristic or a
fundamental right, a requirement that most lower courts have imposed on the sex-plus discrimination doctrine].
3
5
an employee because she is homosexual or transgender, two causal factors may be in play—both
the individual’s sex and something else (the sex to which the individual is attracted or with which
the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an
employee but for that individual’s sex, the statute’s causation standard is met, and liability may
attach.
Reframing the additional causes in today’s cases as additional intentions can do no more to insulate
the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the
perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional
discrimination based on sex violates Title VII, even if it is intended only as a means to achieving
the employer’s ultimate goal of discriminating against homosexual or transgender employees.
There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause
when an employer discriminates against homosexual or transgender employees, an employer who
discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.
Imagine an employer who has a policy of firing any employee known to be homosexual. The
employer hosts an office holiday party and invites employees to bring their spouses. A model
employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be
fired? If the policy works as the employer intends, the answer depends entirely on whether the
model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to
discriminate on the basis of sexual orientation. But to achieve that purpose the employer must,
along the way, intentionally treat an employee worse based in part on that individual’s sex.
An employer musters no better a defense by responding that it is equally happy to fire male and
female employees who are homosexual or transgender. Title VII liability is not limited to
employers who, through the sum of all of their employment actions, treat the class of men
differently than the class of women. Instead, the law makes each instance of discriminating against
an individual employee because of that individual’s sex an independent violation of Title VII.
So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex
stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah
and Bob for being gay or transgender does the same.
At bottom, these cases involve no more than the straightforward application of legal terms with
plain and settled meanings. For an employer to discriminate against employees for being
homosexual or transgender, the employer must intentionally discriminate against individual men
and women in part because of sex. That has always been prohibited by Title VII’s plain terms[.]***
>>>>>>>>>>>>>>>>>>>>>>>>>
6
Peltier v. Charter Day Sch., Inc., 37 F.4th 104 (4th Cir. 2022), cert. denied, 143 S. Ct. 2657 (2023)
[This opinion has been edited by the author to provide focus on the key elements. Edits are indicated through brackets [] or
through ***. In addition, certain language has been bolded or underlined for emphasis. Unless otherwise indicated, all
footnotes have been omitted. In addition, case citations have been omitted or edited to conform to BlueBook citation
requirements].
37 F.4th 104
United States Court of Appeals, Fourth Circuit.
Bonnie PELTIER, as Guardian of A.P., a minor child; Erika Booth, as Guardian of I.B., a minor child; Keely
Burks, Plaintiffs – Appellees,
v.
CHARTER DAY SCHOOL, INC.; Robert P. Spencer, in his capacity as member of the Board of Trustees of
Charter Day School, Inc.; Chad Adams, in his capacity as member of the Board of Trustees of Charter Day
School, Inc.; Suzanne West, in her capacity as member of the Board of Trustees of Charter Day School, Inc.;
Colleen Combs, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Ted
Bodenschatz, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Melissa Gott, in
her capacity as member of the Board of Trustees of Charter Day School, Inc., Defendants – Appellants,
and
The Roger Bacon Academy, Inc., Defendant.
North Carolina Institute for Constitutional Law; Civitas Institute, Inc.; Paul B. Stam, Jr., Amici Supporting
Appellants.
National Women’s Law Center; A Better Balance; American Association of University Women; American
Federation of State, County, and Municipal Employees; American Federation of Teachers; Anti-Defamation
League; Autistic Self Advocacy Network; Bold Futures; California Women Lawyers; Clearinghouse on
Women’s Issues; Coalition of Labor Union Women; Desiree Alliance; Disability Rights Advocates; Disability
Rights Education & Defense Fund; End Rape on Campus; Equality California; Feminist Majority Foundation;
Forge, Incorporated; Gender Justice; Girls for Gender Equity; Girls Inc.; GLBTQ Legal Advocates &
Defenders; Human Rights Campaign; Kentucky Association of Sexual Assault Programs; KWH Law Center for
Social Justice and Change; Legal Aid at Work; Legal Momentum; Legal Voice; National Association of Social
Workers; National Association of Women Lawyers; National Center for Transgender Equality; National
Council of Jewish Women; National Crittenton; National Network to End Domestic Violence; National
Organization for Women Foundation; National Partnership for Women & Families; National Women’s Political
Caucus; Oklahoma Call for Reproductive Justice; Partnership for Working Families; Religious Coalition for
Reproductive Choice; Shriver Center on Poverty Law; SisterReach; Southern Poverty Law Center; Stop Sexual
Assault in Schools; The Afiya Center; The Women’s Law Center of Maryland; Transgender Law Center;
Washington Lawyers? Committee for Civil Rights and Urban Affairs; Women Lawyers on Guard Inc.; Women
With a Vision, Inc.; Women’s Bar Association of the District of Columbia; Women’s Bar Association of the
State of New York; Women’s Institute for Freedom of the Press; Women’s Law Project; Women’s Media
Center; Women’s Rights and Empowerment Network; Women’s All Points Bulletin; National Education
Association; North Carolina Association of Educators; The Society for Research in Child Development; The
Society for the Psychological Study of Social Issues; The Cognitive Development Society; The Society for
Research on Adolescence; Professor Ruthann Robson; United States of America, Amici Supporting Appellees.
National Alliance for Public Charter Schools, Amicus Supporting Rehearing Petition.
Bonnie Peltier, as Guardian of A.P., a minor child; Erika Booth, as Guardian of I.B., a minor child; Keely
1
Burks, Plaintiffs – Appellants,
v.
Charter Day School, Inc.; Robert P. Spencer, in his capacity as member of the Board of Trustees of Charter Day
School, Inc.; Chad Adams, in his capacity as member of the Board of Trustees of Charter Day School, Inc.;
Suzanne West, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Colleen
Combs, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Ted Bodenschatz, in
his capacity as member of the Board of Trustees of Charter Day School, Inc.; Melissa Gott, in her capacity as
member of the Board of Trustees of Charter Day School, Inc., Defendants – Appellees,
and
The Roger Bacon Academy, Inc., Defendant.
National Women’s Law Center; A Better Balance; American Association of University Women; American
Federation of State, County, and Municipal Employees; American Federation of Teachers; Anti-Defamation
League; Autistic Self Advocacy Network; Bold Futures; California Women Lawyers; Clearinghouse on
Women’s Issues; Coalition of Labor Union Women; Desiree Alliance; Disability Rights Advocates; Disability
Rights Education & Defense Fund; End Rape on Campus; Equality California; Feminist Majority Foundation;
Forge, Incorporated; Gender Justice; Girls for Gender Equity; Girls Inc.; GLBTQ Legal Advocates &
Defenders; Human Rights Campaign; Kentucky Association of Sexual Assault Programs; KWH Law Center for
Social Justice and Change; Legal Aid at Work; Legal Momentum; Legal Voice; National Association of Social
Workers; National Association of Women Lawyers; National Center for Transgender Equality; National
Council of Jewish Women; National Crittenton; National Network to End Domestic Violence; National
Organization for Women Foundation; National Partnership for Women & Families; National Women’s Political
Caucus; Oklahoma Call for Reproductive Justice; Partnership for Working Families; Religious Coalition for
Reproductive Choice; Shriver Center on Poverty Law; SisterReach; Southern Poverty Law Center; Stop Sexual
Assault in Schools; The Afiya Center; The Women’s Law Center of Maryland; Transgender Law Center;
Washington Lawyers’ Committee for Civil Rights and Urban Affairs; Women Lawyers on Guard Inc.; Women
With a Vision, Inc.; Women’s Bar Association of the District of Columbia; Women’s Bar Association of the
State of New York; Women’s Institute for Freedom of the Press; Women’s Law Project; Women’s Media
Center; Women’s Rights and Empowerment Network; Women’s All Points Bulletin; National Education
Association; North Carolina Association of Educators; The Society for Research in Child Development; The
Society for the Psychological Study of Social Issues; The Cognitive Development Society; The Society for
Research on Adolescence; Professor Ruthann Robson; United States of America, Amici Supporting Appellants.
North Carolina Institute for Constitutional Law; Civitas Institute, Inc.; Paul B. Stam, Jr., Amici Supporting
Appellees.***
Decided: June 14, 2022
Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, WYNN, DIAZ,
THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, and HEYTENS, Circuit Judges, and
KEENAN and FLOYD, Senior Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Senior Judge Keenan wrote the opinion, in
which Chief Judge Gregory and Judges Motz, King, Wynn, Diaz, Thacker, Harris, Heytens, and Senior Judge
Floyd joined. Judge Wynn wrote a concurring opinion, in which Judges Motz, Thacker, Harris, and Senior Judge
Keenan joined. Senior Judge Keenan wrote a concurring opinion, in which Judge Thacker joined. Judge
Quattlebaum wrote an opinion dissenting in part and concurring in part, in which Judges Richardson and Rushing
joined, and in which Judges Wilkinson, Niemeyer, and Agee joined dissenting in part. Judge Wilkinson wrote a
dissenting opinion, in which Judges Niemeyer and Agee joined.
2
ON REHEARING EN BANC
BARBARA MILANO KEENAN, Senior Circuit Judge:
Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear
skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys
(the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender
stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to
discrimination and denial of the full benefits of their education in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).
In response, despite CDS’ status as a public school under North Carolina law, CDS and its management
company disavow accountability under the Equal Protection Clause by maintaining that they are not
state actors. These entities also assert that Title IX, the federal statute designed to root out gender
discrimination in schools, categorially does not apply to dress codes.
Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their
Equal Protection claim against CDS, and the court’s judgment in favor of the management company on
that claim. We also vacate the court’s summary judgment award in favor of all defendants on the
plaintiffs’ Title IX claim and remand for further proceedings on that claim.
I.
CDS, a public charter school in Brunswick County, North Carolina, educates male and female 2 students
in kindergarten through the eighth grade. The founder of the school, Baker A. Mitchell, Jr., incorporated
defendant Charter Day School, Inc. in 1999. The following year, he obtained a charter from the state of
North Carolina, *113 pursuant to the North Carolina Charter Schools Act of 1996, N.C. Gen. Stat. §
115C-218 et seq. CDS’ policies are established by the volunteer members of its Board of Trustees (the
Board). Mitchell initially served as the Board’s chairman and now serves as its non-voting secretary.
Enrollment at CDS is open to all students who are eligible to attend North Carolina public schools. ***
CDS receives 95% of its funding from federal, state, and local governmental authorities.
After applying for its charter, CDS entered into a “charter school management contract” (the
management agreement) with defendant Roger Bacon Academy, Inc. (RBA), a for-profit corporation
founded and owned by Mitchell. Under the terms of the management agreement, RBA is responsible for
the day-to-day operations of CDS, including hiring school personnel and carrying out the school’s
education program. CDS maintains a bank account on which RBA is a signatory and from which RBA
receives reimbursements for fees and operational expenses.
Since its inception, CDS, at the direction of Mitchell and the Board, has “emphasize[d] traditional
values,” including a “traditional curriculum, traditional manners and traditional respect.” These stated
priorities pervade many areas of the school’s practices. For example, CDS teaches a “classical
curriculum,” utilizing a “direct instruction” method. Overall, as one Board member explained, CDS
1
Charter Day School, Inc. operates four charter schools in North Carolina, including Charter Day School. The non-profit entity CDS, Inc.
and its trustees, rather than the school itself, are the named defendants in this case. For ease of reference, we will refer to the school, its
non-profit parent entity, and the trustees collectively as “CDS” throughout this opinion.
2
Because the plaintiffs challenge the skirts requirement only as discriminatory toward cisgender girls, we do not address the effects of the
policy on any other students.
3
operates “more like schools were 50 years ago compared to now.”
As part of this educational philosophy, CDS has implemented a dress code to “instill discipline
and keep order” among students. Among other requirements, all students must wear a unisex polo
shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys
are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or
“skort.” In contrast, boys must wear shorts or pants.
All students are required to comply with the dress code unless they have physical education class, when
they wear unisex physical education uniforms, or an exception is made for a field trip or other special
event. A student’s failure to comply with the dress code requirements may result in disciplinary action,
including notification of the student’s parent, removal from class to comply with the dress code, or
expulsion, though no student has been expelled for violating the dress code.
In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell
that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating:
The Trustees, parents, and other community supporters were determined to preserve chivalry and
respect among young women and men in this school of choice. For example, young men were to hold
the door open for the young ladies and to carry an umbrella, should it be needed. Ma’am and sir were
to be the preferred forms of address. There was felt to be a need to restore, and then preserve,
traditional regard for peers.
Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded
as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in
implementing the skirts requirement, CDS sought to “treat[ ] [girls] courteously and more gently than
boys.”
Peltier and two other CDS parents and guardians, on behalf of their female children (the plaintiffs), filed
suit in the Eastern District of North Carolina against *114 CDS, the members of the Board, and RBA
(the defendants), alleging violations of the Equal Protection Clause and Title IX. 3 The plaintiffs alleged
that the skirts requirement is a sex-based classification rooted in gender stereotypes that discriminates
against them based on their gender. The parties later filed cross-motions for summary judgment.
In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and
intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts
requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that
“girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the
message that girls should be less active than boys and that they are more delicate than boys,” with the
result that boys “feel empowered” and “in a position of power over girls.”
The plaintiffs also described the impact of the skirts requirement on their ability to participate in school
activities. On one occasion, when a first-grade female student wore shorts to school due to a
misunderstanding of the dress code, she was removed from class and was required to spend the day in
the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including
climbing, using the swings, and playing soccer, except for days on which they are permitted to wear
3
The plaintiffs also alleged state law claims for breach of the charter and a violation of the North Carolina Constitution.
These claims are pending in the district court and are not at issue in this appeal.
4
their unisex physical education uniforms. The plaintiffs further testified that they cannot participate
comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that
boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses
regarding the effects that the skirts requirement and gender stereotypes have on female students.
The district court concluded that CDS, in imposing and implementing the skirts requirement, was a state
actor for purposes of the Equal Protection claim brought under 42 U.S.C. § 1983. The court reasoned
that CDS’ provision of a free, public education is a function historically and exclusively performed by
the state and that, therefore, CDS’ conduct fairly is attributable to the state of North Carolina. However,
with respect to RBA, the court concluded that RBA does not have a sufficiently close tie to the state to
qualify as a state actor. On the merits of the Equal Protection claim, the court held that the skirts
requirement violates the Equal Protection Clause. The court therefore granted summary judgment to the
plaintiffs on this claim against CDS.
The district court reached a different conclusion regarding the Title IX claim, holding that dress codes
categorically are exempt from Title IX’s prohibition against gender discrimination. The court reasoned
that when the United States Department of Education rescinded a prior regulation governing dress
codes, the Department reasonably had concluded that Congress did not intend for such policies to be
subject to Title IX. ***
On appeal, a panel of this Court reversed the district court’s judgment on *115 both the Equal Protection
and the Title IX claims. [citation omitted]. That decision was vacated by a vote of the full Court, and we
now consider this appeal en banc.
[Editor’s Note: The remainder of this opinion has been edited to focus on the plaintiffs’ Equal
Protection claim. The Title IX portion of the court’s remaining opinion is omitted].
II.
We review de novo the district court’s summary judgment decision. Jessup v. Barnes Grp., Inc., 23 F.4th
360, 365 (4th Cir. 2022). Summary judgment may be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.
(quoting Fed. R. Civ. P. 56(a)).
A. EQUAL PROTECTION CLAIM
We begin with the plaintiffs’ Equal Protection claim. To prevail on this claim under Section 1983, the
plaintiffs were required to show that: (1) the defendants deprived them of a constitutional right; and (2)
the defendants did so “under color of [State] statute, ordinance, regulation, custom, or usage” (the state
action requirement). Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (alteration in original)
(citation omitted). The state action requirement of Section 1983 “excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” Id.
i. State Action Analysis
In assessing a private actor’s relationship with the state for purposes of an Equal Protection claim, we
must determine whether there is a “sufficiently close nexus” between the defendant’s challenged action
and the state so that the challenged action “may be fairly treated as that of the State itself.” Id. at 314
(citation and internal quotation marks omitted). ***
5
The Supreme Court has identified various circumstances in which a private actor may be found to have
engaged in state action. The Court has held that when the state has coerced, or has provided “significant
encouragement” to, a private actor, or if there is “pervasive entwinement of public institutions and
public officials” with a private entity, that entity’s conduct is considered state action. [case citations
omitted]. ***
A state also will be held responsible for a private actor’s decision when the state’s engagement or
encouragement is so significant that “the choice must in law be deemed to be that of the State.” RendellBaker v. Kohn, 457 U.S. 830, 842 (1982). Both the Supreme Court and this Court have recognized *116
the presence of such engagement or encouragement when a state has outsourced or otherwise delegated
certain of its duties to a private entity, thereby rendering the acts performed under those delegated
obligations “under color of law.” [case citations omitted]. When the function at issue has been
“traditionally the exclusive prerogative” of the state, a private entity executing that function has engaged
in state action. [case citations omitted]. ***
ii. State Action Analysis—CDS
In the present case, because the state of North Carolina was not involved in CDS’ decision to implement
the skirts requirement, there was no “coercion” or “pervasive entwinement” by the state with the
challenged conduct. Blum, 457 U.S. at 1004; Brentwood, 531 U.S. at 298. The plaintiffs argue,
however, that CDS nevertheless qualifies as a state actor on a separate permitted basis, namely, that the
operation of schools designated as “public” under North Carolina law is an exclusively public function
that North Carolina, by statute, has delegated in part to charter school operators to fulfill the state’s
constitutional duty to provide free, universal elementary and secondary schooling. [citations omitted].
In response, CDS contends that like the private school at issue in Rendell-Baker, 457 U.S. 830,
operators of North Carolina charter schools merely are private entities fulfilling contracts with the state.
According to CDS, because no North Carolina student is required to attend CDS, the state has not
delegated to charter schools its responsibility to educate North Carolina students. *** *117. Thus, CDS
asks us to conclude that it merely is a private actor providing a service under its charter contract with the
state. We disagree with CDS’ argument.
The North Carolina Constitution mandates that the state “provide by taxation and otherwise for a general
and uniform system of free public schools … wherein equal opportunities shall be provided for all
students.” N.C. Const. art. IX, § 2, cl. 1. To fulfill this duty, in addition to establishing traditional public
schools, the North Carolina legislature has authorized the creation of public charter schools that are
overseen by a state board. N.C. Gen. Stat. § 115C-218; see also N.C. Const. art. IX, § 5 (“The State
Board of Education shall supervise and administer the free public school system.”). Charter schools may
only operate under the authority granted to them by their charters with the state. See id. §§ 115C218.15(c), 115C-218.5.
Among other requirements, charter schools must design their educational programming to satisfy
student performance standards adopted by the state board of education, a requirement not applicable to
non-public schools. Id. §§ 115C-218.85(a)(2), 115C-547 through -562. The state may revoke a school’s
charter, among other reasons, for non-compliance with the terms of the charter, poor student
performance, or poor fiscal management. See id. § 115C-218.95. Enrollment at charter schools is open
to any student eligible to attend a public school in North Carolina. Id. § 115C-218.45.
6
In defining the nature of charter schools, North Carolina law expressly provides:
A charter school that is approved by the State shall be a public school within the local school
administrative unit in which it is located. All charter schools shall be accountable to the State Board
for ensuring compliance with applicable laws and the provisions of their charters.
Id. § 115C-218.15(a)5 (emphasis added)[.] *** And “for purposes of providing certain State-funded
employee benefits,” the North Carolina legislature has specified that “charter schools are public schools
and that the employees of charter schools are public school employees.” N.C. Gen. Stat. § 115C218.90(a)(4) (emphasis added). Thus, under the plain language of these statutes, as a matter of state
law, charter schools in North Carolina are public institutions.
*** The state bears “an affirmative obligation” under the state constitution to educate North Carolina’s
students and partially has “delegated that function” to charter school operators, who have carried out the
state’s obligation by virtue of their charters with the state. West, 487 U.S. at 56 [.] [citation omitted].
***
The Supreme Court has held that such a delegation of a state’s responsibility renders a private entity a
state actor. See id. at 56, 108 S.Ct. 2250. In articulating the rationale for this rule, the Court explained
that a state cannot delegate duties that “it is constitutionally obligated to provide and leave its citizens
with no means for vindication of those [constitutional] rights.” See id. at 56-57 & n.14 (citation
omitted). So too, here. Were we to adopt CDS’ position, North Carolina could outsource its educational
obligation to charter school operators, and later ignore blatant, unconstitutional discrimination
committed by those schools. ***
No public school in North Carolina can violate the constitutional rights of its students. If a student
wishes to attend a school with discriminatory policies, the student must select a private institution
not subject to the constraints of the Constitution.
*** CDS operates a “public” school, under authority conferred by the North Carolina legislature and
funded with public dollars, functioning as a component unit in furtherance of the state’s constitutional
obligation to provide free, universal elementary and secondary education to its residents. Accordingly,
we hold that in operating a school that is part of the North Carolina public school system, CDS performs
a function traditionally and exclusively reserved to the state. ***
Ultimately, the state action inquiry in this case is not complicated: (1) North Carolina is required under
its constitution to provide free, universal elementary and secondary schooling to the state’s residents; (2)
North Carolina has fulfilled this duty in part by creating and funding the public charter school system;
and (3) North Carolina has exercised its sovereign prerogative to treat these state-created and statefunded schools as public institutions that perform the traditionally exclusive government function of
operating the state’s public schools. Accordingly, the public-school operator at issue here, CDS,
implemented the skirts requirement as part of the school’s educational mission, exercising the
“power possessed by virtue of state law and made possible only because the [school] is clothed
with the authority of state law.” West, 487 U.S. at 49 (citation and internal quotation marks omitted).
Under these circumstances, we will not permit North Carolina to delegate its educational responsibility
to a charter school operator that is insulated from the constitutional accountability borne by other North
Carolina public schools. ***
iv. Merits of Equal Protection Claim Against CDS
7
Having determined that CDS is a state actor for purposes of Section 1983, we turn to consider the merits
of the plaintiffs’ Equal Protection claim involving CDS. The plaintiffs assert that the skirts requirement
fails the rigors of heightened scrutiny, because CDS has not identified *124 an important governmental
interest that justifies the sex-based classification. The plaintiffs contend that, instead, CDS merely has
relied on gender stereotypes to support the skirts requirement, a plainly illegitimate justification under
well-settled Supreme Court precedent.
In response, CDS argues that “comprehensive sex-specific dress codes” do not violate the Equal
Protection Clause when male and female students are subject to comparable burdens under the policy.
Thus, according to CDS, the skirts requirement does not violate the Constitution because boys also are
limited in dressing and grooming options, including being subject to prohibitions on long hair and
wearing jewelry, which are applicable only to male students. CDS further asserts that because its female
students have achieved academic and extracurricular success, these students have not been “hobbled” by
the skirts requirement. We disagree with CDS’ arguments.
For many years, the Supreme Court and this Court have applied a heightened level of scrutiny to sexbased classifications like the skirts requirement. United States v. Virginia, 518 U.S. 515, 532-33 (1996)
[additional case citations omitted]. These decisions have been grounded on the Supreme Court’s
landmark decision in [United States v.] Virginia. There, the Supreme Court reviewed the
Commonwealth of Virginia’s attempt to preserve single-sex education for males at the Virginia Military
Institute (VMI) by establishing a “leadership” program for women at a nearby private, women’s college.
Virginia, 518 U.S. at 519-20. The Court rejected Virginia’s attempt to remedy its discriminatory
treatment of women in this manner. Id. at 534.
In conducting its analysis, the Court emphasized that parties seeking to defend a state actor’s sex-based
classification “must demonstrate an exceedingly persuasive justification for that action.” Id. at 531
(citation and internal quotation marks omitted). This “burden of justification” is a “demanding” one, and
“rests entirely on the State.” Id. at 533. The Court explained that the demanding review of intermediate
scrutiny is required because of our nation’s “volumes of history” demonstrating the denial of rights and
opportunities to women because of their sex. Id. at 531. Accordingly, to satisfy such heightened
scrutiny, a defendant “must show at least that the challenged classification serves important
governmental objectives and that the discriminatory means employed are substantially related to the
achievement of those objectives.” Id. at 533 (alterations, citation, and internal quotation marks omitted).
We approach sex-based classifications with skepticism because of the dangers enmeshed in such
arbitrary sorting of people. As we have explained:
[J]ustifications for gender-based distinctions that are rooted in overbroad generalizations about the
different talents, capacities, or preferences of males and females will not suffice. Legislative
classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of
reinforcing stereotypes about the ‘proper place’ of women and their need for special protection.
Knussman, 272 F.3d at 635-36 (citations and internal quotation marks omitted). In other words, we will
reject sex-based classifications that “appear to rest on nothing more than conventional notions about the
*125 proper station in society for males and females.” Id. at 636; see also Virginia, 518 U.S. at 550
(rejecting defendant’s reliance on “generalizations about ‘the way women are’” to justify differential
treatment) [additional citation omitted].
In view of this precedent, we reject CDS’ argument that the skirts requirement satisfies intermediate
8
scrutiny because the dress code as a whole is intended to “help to instill discipline and keep order.”
Instead, we must evaluate whether there is an exceedingly persuasive justification for the sex-based
classification being challenged, namely, the skirts requirement. CDS cannot justify the skirts
requirement based on the allegedly “comparable burdens” imposed by other portions of the dress code
that are applicable only to male students. A state actor’s imposition of gender-based restrictions on one
sex is not a defense to that actor’s gender-based discrimination against another sex.4
We also observe at the outset that the agreement of some parents to the sex-based classification of the
skirts requirement is irrelevant to our Equal Protection analysis. No parent can nullify the constitutional
rights of other parents’ children.
Applying the demanding lens of intermediate scrutiny, we conclude that the skirts requirement is
not supported by any important governmental objective and, thus, falls woefully short of
satisfying this constitutional test. CDS does not attempt to disguise the true, and improper, rationale
behind its differential treatment of girls, which plainly does not serve an important governmental
interest. In his initial response to a parent’s objection to the requirement, Baker Mitchell, the founder of
CDS, explained that the skirts requirement embodies “traditional values.” According to Mitchell, the
requirement for girls to wear skirts was part of CDS’ effort “to preserve chivalry and respect among
young women and men,” which also included requiring boys “to hold the door open for the young ladies
and to carry an umbrella” to keep rain from falling on the girls. Mitchell later elaborated that chivalry is
“a code of conduct where women are … regarded as a fragile vessel that men are supposed to take care
of and honor.” Mitchell explained that in implementing the skirts requirement, CDS sought to “treat
[girls] courteously and more gently than boys.” CDS’ Board members agreed with these stated
objectives, including CDS’ goal of fostering “traditional roles” for boys and girls.
It is difficult to imagine a clearer example of a rationale based on impermissible *126 gender
stereotypes. On their face, the justifications proffered by CDS “rest on nothing more than conventional
notions about the proper station in society for males and females.” Knussman, 272 F.3d at 636; see also
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (a sex-based classification reflecting
“archaic and stereotypic notions … is illegitimate”); J.E.B. v. Alabama, 511 U.S. 127, 138 (1994)
(rejecting “the very stereotype the law condemns” as a justification for a state’s sex-based policy
(citation omitted)). Under long-standing precedent of the Supreme Court and this Circuit, the sex-based
stereotypes advanced by CDS utterly fail to supply the “exceedingly persuasive justification” necessary
for the skirts requirement to survive constitutional scrutiny.5 Virginia, 518 U.S. at 531; Sessions, 137 S.
Ct. at 1698; Grimm, 972 F.3d at 608. Thus, in the absence of any important governmental objective
supporting CDS’ skirts requirement, we hold that the skirts requirement fails intermediate scrutiny and
facially violates the Equal Protection Clause.
To the extent that other courts have endorsed a “comparable burdens” test for sex-specific dress codes, we
respectfully disagree with that view. See Hayden v. Greensburg Comm. Sch. Corp., 743 F.3d 569, 577-82 (7th Cir. 2014)
(in dicta, collecting cases and discussing principles of the comparable burdens test); cf. Jespersen v. Harrah’s Operating Co.,
444 F.3d 1104, 1109-10 (9th Cir. 2006) (en banc) (employing such a test in the Title VII context without considering the
Equal Protection Clause). These cases rely heavily on precedent from the 1970s affirming the validity of dress codes based
on “traditional” notions of appropriate gender norms. As explained above, any sex-specific dress or grooming policy, like
any other sex-based classification, must be substantially related to an important governmental objective. Virginia, 518
U.S. at 533. Thus, applying the holding in Virginia, we do not compare the relative “burdens” that CDS’ dress code
places on its female and male students.
5
Because we conclude that CDS has not satisfied its burden to establish an “exceedingly persuasive” justification for the
skirts requirement, we do not address whether the policy is “substantially related” to an important governmental objective.
Virginia, 518 U.S. at 533. For the same reason, we need not consider the ample evidence of the harm the plaintiffs suffered
due to the skirts requirement and the pernicious gender stereotypes that the dress code communicated to CDS’ students.
4
9
In reaching this conclusion, we observe that nothing in the Equal Protection Clause prevents public
schools from teaching universal values of respect and kindness. But those values are never advanced by
the discriminatory treatment of girls in a public school. Here, the skirts requirement blatantly perpetuates
harmful gender stereotypes as part of the public education provided to North Carolina’s young residents.
CDS has imposed the skirts requirement with the express purpose of telegraphing to children that girls
are “fragile,” require protection by boys, and warrant different treatment than male students, stereotypes
with potentially devastating consequences for young girls. If CDS wishes to continue engaging in this
discriminatory practice, CDS must do so as a private school without the sanction of the state or
this Court.
***
[Editor’s Note: The Title IX portion of the court’s opinion is omitted. Also, the concurring opinion of
Judge’s Wynn, Motz, Thacker, Harris, and Keenan is omitted.]
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
10