April 5, 2018, Trial News
Sixth Circuit rules Title VII prohibits discrimination based on transgender status
The Sixth Circuit has held that discrimination based on an employee’s transgender or transitioning status violates Title VII of the Civil Rights Act of 1964. The decision follows a recent opinion from the en banc Second Circuit finding that discrimination on the basis of sexual orientation violates Title VII.
The Sixth Circuit has held 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).)
In 2008, Aimee Stephens, a transgender woman, began working at the R.G. & G.R. Harris Funeral Homes in Michigan as a funeral director. From 2008 to 2013, Stephens presented as a man, which was the sex she had been assigned at birth. In 2013, Stephens informed Thomas Rost, the funeral homes’ owner and operator, 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). While investigating her claim, the agency learned that the funeral home paid for suits for male funeral directors but did not provide this benefit to female funeral directors. In 2014, the EEOC filed a 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.
Both parties moved for summary judgment. The district court found that there was evidence supporting a claim of employment discrimination but ruled in the defendant’s favor on both claims, finding in the context of the unlawful termination allegations that the Religious Freedom Restoration Act (RFRA) precludes the EEOC from enforcing Title VII against the defendant. The EEOC appealed, and Stephens intervened.
The Sixth Circuit reversed the district court’s grant of summary judgment on the clothing policy claim and remanded for further proceedings. The court also reversed summary judgment regarding the unlawful termination and granted summary judgment on this claim to the EEOC, finding that “unrefuted facts” showed that Stephens was fired because she refused to comply with the defendant’s stereotypical perception of her sex.
The Sixth Circuit’s opinion focused primarily on whether Stephens had been terminated as a result of sex discrimination in violation of Title VII. The court referenced Price Waterhouse v. Hopkins (490 U.S. 228 (1989)), in which the U.S. Supreme Court held that Title VII was intended to prohibit discrimination based on both biological differences and “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Citing its decision in Smith v. City of Salem (378 F.3d 566 (6th Cir. 2004)), which was based on Price Waterhouse, the Sixth Circuit rejected the defendant’s argument that its sex-specific dress code was lawful because it imposed equal burdens on men and women. The question, the court determined, was not whether the employer’s sex stereotyping affected men and women disparately but whether the employee suffered discrimination for failing to conform to the employer’s stereotype of how men and women should look and act.
The court then explicitly held—going beyond its holding in Smith—that discrimination on the basis of an employee’s transgender or transitioning status is a form of sex discrimination that violates Title VII. 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.”
Nancy Marcus, a senior attorney at Lambda Legal, which filed an amicus brief supporting the EEOC and Stephens, emphasized the importance of this holding. “This is the latest in a series of cases in which federal courts have recognized that gender identity discrimination is an actionable form of sex discrimination under Title VII. While courts across the country have long recognized that transgender plaintiffs may assert Price Waterhouse sex-stereotyping claims under Title VII, more and more courts—in accordance with the EEOC’s interpretation of Title VII—are also explicitly affirming that transgender, lesbian, gay, and bisexual plaintiffs are not necessarily required to frame their claims in terms of sex stereotypes to bring Title VII sex discrimination claims based on gender identity or sexual orientation discrimination.”
Having found that the defendant violated Title VII, the Sixth Circuit then ruled that the RFRA does not prevent the EEOC from enforcing Title VII. First, the court found that the ministerial exception—which precludes application of Title VII to employment relationships between religious institutions and ministers—does not apply because the defendant was not marked by “clear or obvious religious characteristics” and Stephens did not perform any religious functions.
The court then held that requiring Rost to comply with Title VII did not substantially burden his sincere religious practice, writing that: “[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.” Finally, the court determined that even if Rost’s religious exercise were substantially burdened, the EEOC’s enforcement of Title VII is the “least restrictive means” of serving the government’s compelling interest in stopping discrimination.
Marcus stressed that this rejection of the defendant’s attempt to use the RFRA to avoid complying with Title VII was another key part of the decision. “The RFRA does not authorize using religious freedom as a license to discriminate, and the Sixth Circuit properly curtailed such an expansive and harmful use. The court found that RFRA cannot be used as a defense against a discrimination claim brought by a private party under Title VII. And as the court also ruled, there is a compelling interest in ending anti-LGBT discrimination that justifies the enforcement of Title VII against employers who discriminate, whether or not they invoke religion in the process.”
As Trial News previously reported, the Sixth Circuit’s decision follows a recent opinion from the en banc Second Circuit finding that discrimination on the basis of sexual orientation violates Title VII.