Categories: Employment Discrimination Law

Recently, the United States Court of Appeals for the Sixth Circuit held in a unanimous decision that discrimination on the basis of an employee’s transgender or transitioning status violates Title VII of the Civil Rights Act of 1964. (Equal Emp’t Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669 [6th Cir. Mar. 7, 2018])

The case involved Aimee Stephens, a transgender female and former funeral director at R.G. & G.R. Harris Funeral Homes in Michigan. Stephens had worked at the Funeral Home since 2007. She dressed and presented as a male until 2013, when Stephens informed the owner, Thomas Rost, that she had struggled with her gender identity her entire life and that she planned to transition to live as a woman.  A few weeks later, Rost fired her. Rost testified that Stephens was terminated because she “was no longer going to represent himself as a man” and that authorizing Stephens to dress in female attire would have made Rost, a devout Christian, “complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

Stephens filed a sex-discrimination claim with the Equal Employment Opportunity Commission (EEOC) alleging sex discrimination under Title VII.  Following an investigation, the EEOC issued a letter of determination finding reasonable cause to believe that the Funeral Home “discharged [Stephens] due to her sex and gender identity, female, in violation of Title VII.”  (The EEOC also discovered that the funeral home paid for suits for male funeral directors but did not provide this benefit to female funeral directors.) The EEOC subsequently filed a Title VII sex discrimination complaint against Harris Funeral Homes in the Eastern District of Michigan, alleging that Stephens’s termination and the company’s clothing policy violated Title VII.

The district court determined that there was “direct evidence to support a claim of employment discrimination” on the basis of sex in violation of Title VII, but nevertheless dismissed the suit, accepting the Funeral Home’s argument that the Religious Freedom Restoration Act (RFRA) precludes the EEOC from enforcing Title VII against the Funeral Home. The EEOC appealed, and Stephens intervened.

On appeal, the Sixth Circuit panel found that while the district court correctly found that Stephens was unlawfully fired because of her failure to conform to sex stereotypes, the court had erred in holding that Stephens could not alternatively pursue a claim under Title VII that she was discriminated against on the basis of her transgender and transitioning status. The court explained: “Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be.”  Having ruled that that the Funeral Home violated Title VII, the Sixth Circuit then ruled that the RFRA did not apply or prevent the EEOC from enforcing Title VII. The Court wrote: “[P]ermitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. . . . [W]e hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.”

The Sixth Circuit also reversed the district court’s grant of summary judgment on the clothing policy claim and remanded for further proceedings.

This decision comes on the heels of two additional recent cases in the Seventh and Second Circuits which applied a similar analysis to conclude that discrimination on the basis of sexual orientation is prohibited sex discrimination under Title VII.  (Hively v. Ivy Tech Community College of Indiana (7th Cir. 2017), Case No. 15-1720 and Zarda v. Altitude Express, Inc. (2nd Cir. 2017), Case No. 15-3775 (en banc).

Borgess Law, LLC continues to monitor and report on new developments in this rapidly evolving area of the law. You can reach Borgess Law, LLC at (567) 455-5955 or by submitting an online inquiry. Borgess Law never charges for initial consultations.