Sixth Circuit Court of Appeals Holds That Transgender Discrimination Is Unlawful Under Title VII
Although the Trump administration has signaled its intention to shift away from the prior administrations efforts to expand LGBTQ+ equity rights in the workplace, a federal appellate court recently held that discrimination based on an individuals status as transgender or gender-transitioning is prohibited by Title VII of the Civil Rights Act of 1964. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals held that discrimination based on an employees status as transgender or gender-transitioning is prohibited sex discrimination under Title VII. In addition, the Sixth Circuit rejected the employers religious freedom defense. The Sixth Circuit is the third federal appellate court to rule in the last year that Title VII protections extend to LGBTQ+ status, reflecting a growing split of authority among the federal courts. See Hively v. Ivy Tech Community College (7th Cir. April 4, 2017); Zarda v. Altitude Express (2nd Cir. Feb. 27, 2018).
The Harris Funeral Homes case was brought by the Equal Employment Opportunity Commission (EEOC) on behalf of Aimee Stephens, a funeral director for the Harris Funeral Home that was fired after announcing her plans to transition from male to female at work. The EEOC alleged that the Harris Funeral Home violated Title VII by terminating Stephens employment on the basis of her transgender or gender-transition status and her failure to conform to sex-based stereotypes. Under the Obama administration, the EEOC adopted a strategic enforcement agenda of expanding LGBTQ+ workplace rights and announced its position that Title VIIs prohibition on sex discrimination extends to sex stereotyping based on LGBTQ+ status. The new Trump administrations appointments to the EEOC are not yet final, but there is a potential that the EEOCs position on LGBTQ+ protections will shift under the Trump administration.
The Harris Funeral Home Case
In the Harris Funeral case, the lower court granted summary judgment to Harris Funeral Home and its owner Thomas Rost. The lower court held that Stephens transgender status is not a protected characteristic covered by Title VII and that the Funeral Home was exempt from a Title VII claim under the federal Religious Freedom Restoration Act (RFRA). With respect to the RFRA, the Funeral Home and Rost had argued that having a transgender funeral director would distract grieving customers and prevent Rost from carrying out his religious exercise of caring for grieving people.
On appeal, the Sixth Circuit reversed the lower court and granted summary judgment to the EEOC. The Sixth Circuit held that discrimination on the basis of transgender or gender-transitioning status or because of their failure to conform to sex stereotypes violates Title VII. In a strongly worded decision, the Sixth Circuit stated, it is analytically impossible to fire an employee based on that employees status as a transgender person without being motivated, at least in part, by the employees sex and that discrimination because of sex inherently includes discrimination against employees because of a change in their sex.
Additionally, the Sixth Circuit rejected the RFRA defense. It held that a religious claimant cannot rely on customers presumed biases to establish a substantial burden under RFRA. It also found that permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rosts religious beliefs is not a substantial burden under RFRA. The Sixth Circuit further held that, even if the Funeral Home could establish that Rosts exercise of his religious beliefs would be substantially burdened by requiring him to employ Stephens after her transition, enforcing Title VII here is the least restrictive means of furthering [the EEOCs] compelling interest in combating and eradicating sex discrimination.
While the potential extent of LGBTQ+ protections under Title VII is still unsettled, employers should take note that, depending on their employees location, Title VII protections may exist. In addition, apart from Title VII, a minority of states and some municipalities have their own anti-discrimination laws extending to sexual orientation and/or gender identity. For example, the Minnesota Human Rights Act contains such protections. Further, the Harris Funeral Homes case illustrates that religious exemptions to discrimination law are nuanced and that an employer wanting to rely on a religious exemption should first consult with legal counsel.