In a brief to the Supreme Court yesterday, the U.S. Department of Justice argued that Title VII’s prohibition against workplace discrimination on the basis of sex does not protect workers against discrimination on the basis of transgender identity or transitioning status.  The brief was filed in opposition to a petition for writ of certiorari filed by the employer in the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.  In March, the Sixth Circuit, agreeing with the EEOC, ruled that the employer violated Title VII when it terminated Aimee Stephens, the employer’s funeral director for six years, after she told the owner she would return from an upcoming vacation presenting as a woman.  The court also held that the employer was not entitled to the ministerial exception under Title VII nor a defense under the Religious Freedom Restoration Act based on a substantial burden to the owner’s religious exercise.  In yesterday’s brief, Solicitor General Noel Francisco told the court that it disagrees with the interpretation of Title VII adopted by the EEOC and the Sixth Circuit, but that the Court should hold the petition until it decides a case about whether Title VII’s prohibition against workplace discrimination on the basis of sex protects workers against discrimination on the basis of sexual orientation.  Two such cases, Altitude Express v. Zarda and Bostock v. Clayton County, also have petitions for writs of certiorari pending before the Court.  Francisco argues that the Court should consider these cases first because the decision in R.G. & G.R. Harris rests in part on their reasoning and the question in Zarda and Bostock has so far produced a deeper circuit split.

While the Trump administration has turned its back on LGBTQ workers, POLITICO reports that the draft text of the renegotiated North American free trade agreement contains a provision (Article 23.9) requiring Canada, Mexico, and the United States to implement policies to protect workers against discrimination on the basis of sexual orientation and gender identity.  Past trade agreements negotiated by the United States, such as the defunct Trans-Pacific Partnership, have lacked LGBTQ-specific protections.  Canadian and American officials acknowledge that the provision would not mandate new law, but Canadian officials view the language as a victory for their Prime Minister’s trade agenda with potential legal implications.  The AFL-CIO, which has not yet endorsed the draft agreement as a whole, supports the LGBTQ provision.

On Tuesday night, employees at Law360, a prominent legal news site operated by LexisNexis, voted 141-11 to authorize a strike.  In an election run by the NLRB two years ago, the employees voted 109-9 to unionize and affiliate with the Communications Workers of America’s NewsGuild, which already represents 25,000 journalists and media workers.  Workers explained that this week’s vote signals they are ready to strike if necessary after years of stalling by management, even though it is an outcome they would like to avoid.

The National Mediation Board announced Tuesday that over 2,000 catering employees who work in kitchens for United Airlines voted to join UNITE HERE.  More than 1,700 workers participated in the vote, and 72 percent voted in favor of unionizing.  With the addition of the catering employees, over 80 percent of employees at United are now unionized, including all of the airline’s front-line staff.

The Teamsters announced yesterday that 253 drivers for Sysco-Boston voted overwhelmingly to join Teamsters Local 653.  Sysco is the country’s largest broadline food service provider, and Sysco-Boston is the company’s New England distribution center, which services five states.  The workers are hoping to combat high insurance costs and an opaque pay system.

The NLRB has again denied reconsideration of its 2017 Boeing decision, which established a new standard governing facially neutral workplace policies and upheld Boeing’s policy restricting the use of camera phones on the job.  All four Board members, including Obama appointee Lauren McFerran, rejected a motion by the International Union of Painters and Allied Trades Local 159 for reconsideration of an order from July denying the union’s request to intervene in the Boeing case for the purpose of seeking reconsideration of that decision.  McFerran noted that she still disagreed with the Boeing decision itself.