Discrimination based on a person’s transgender status constitutes discrimination based on sexual orientation and is therefore prohibited under Title VII of the Civil Rights Act of 1964, the Sixth U.S. Circuit Court of Appeals has ruled.
In EEOC v R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit revived a funeral director’s transgender bias claim against the Michigan funeral home that fired her. In its ruling, the court rejected the funeral home’s argument that it was protected by the Religious Freedom Restoration Act (RFRA). The funeral home’s owner had asserted that employing the director, who was biologically male but was transitioning to female, went against his Christian beliefs.
The decision comes on the heels of two rulings from the Second Circuit Court of Appeals and Seventh Circuit Court of Appeals respectively. Both opinions found that discrimination based on a person’s sexual orientation is prohibited under Title VII.
Transitioning Employee Unlawfully Fired
Aimee Stephens, a funeral director at R.G. & G.R. Harris Funeral Homes, was terminated after informing the funeral home’s owner that she intended to transition from male to female and present as a female at work. After she was fired, Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination based on sexual orientation. The EEOC investigated and filed a lawsuit against the funeral home in the U.S. District Court for the Eastern District of Michigan, alleging sex-based discrimination in violation of Title VII.
The funeral home sought to dismiss the EEOC’s suit, arguing there was no valid sex discrimination claim. The funeral home maintained the RFRA precluded the enforcement of Title VII because doing so would “substantially burden” the funeral home owner’s exercise of his religious beliefs.
The Eastern District dismissed the EEOC’s complaint, holding that transgender status is not a protected trait under Title VII, and that the EEOC could not file a discrimination claim based solely on the plaintiff’s transgender or transitioning status. In so ruling, the court accepted the funeral home’s argument that the RFRA applied.
The Sixth Circuit reversed the lower court on appeal, finding the Eastern District incorrectly held that a claim could not be pursued under Title VII based on transgender and transitioning status.
Transgender Discrimination and ‘Stereotypical Notions’
In its opinion, the Sixth Circuit explained that sexual stereotyping and transgender discrimination are “based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations.” As a result, discrimination toward an individual’s transgender status “is always based on gender stereotypes: the stereotype that individuals will conform their appearance and behavior – whether their dress, the name they use, or other ways they present themselves – to the sex assigned them at birth,” the Court said.
“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” the Sixth Circuit wrote. According to the Court, an employer cannot discriminate based on transgender status without imposing its stereotypical notions of how “sexual organs and gender identity ought to align” and there is “no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity.”
Rejecting the funeral home’s contention that the RFRA precluded enforcement of Title VII, the Sixth Circuit noted that the RFRA prohibits the government from “substantially burdening” a person’s exercise of religion, unless the government demonstrates the burden is in furtherance of a compelling governmental interest, and the least restrictive means of furthering that compelling governmental interest.
In Stephens’ case, the Sixth Circuit said the funeral home’s argument that the “burden” in connection with her presenting as female – namely, that it would 1) be a “distraction” for the deceased’s family members and 2) force the funeral home to violate the owner’s faith – were not substantial within the meaning of RFRA.
Regarding the “distraction” argument, the Sixth Circuit ruled that a religious claimant “cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” As to the faith-based argument, the Court explained that allowing Stephens to wear attire that reflects a conception of gender that is at odds with the owner’s religious beliefs was not a substantial burden because “tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.” The Court added, “[T]he fact that [the funeral home owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.”
Title VII and Prevention of Workplace Discrimination
In conclusion, the Sixth Circuit held that even if there was a substantial burden involved, enforcing Title VII was the least restrictive means of furthering the compelling interest of preventing workplace discrimination. “Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement,” the Court wrote.
The attorneys in Sommers Schwartz’s Employment Litigation Group are experienced and knowledgeable in pursuing workplace bias and discrimination claims. If you suspect that you have been unfairly treated because of your sexual orientation or transgender/transitioning status, please contact us today to learn how we can help.