“Sex Discrimination” Now Includes Transgender Discrimination in Sixth Circuit

In an opinion issued on March 7, 2018, EEOC v. R.G. and G.R. Harris Funeral Homes, Inc.,[note]__ F.3d __, 2018 WL 1177669 (6th Cir. 2018)[/note] the Sixth Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio, and Michigan) expressly held that Title VII prohibits discrimination on the basis of transgender and transitioning status. When previously reviewing similar circumstances, in Smith v. City of Salem,[note]378 F.3d 566, 573 (6th Cir. 2004)[/note] the Sixth Circuit found that a transsexual plaintiff stated a claim of discrimination under Title VII under a sex/gender non-conformity theory based on plaintiff’s failure to conform to sex/gender stereotypes about how a man should look. But in Smith, the Sixth Circuit stopped short of holding that transsexual (or transgender) status was protected under Title VII.

The Sixth Circuit cleared up any uncertainty in the R.G. and G.R. Harris Funeral Homes decision, expressly holding that discrimination on the basis of transgender or transitioning status is necessarily “sex discrimination.” The court concluded that Price Waterhouse v. Hopkins[note]490 U.S. 228 (1989)[/note] compelled its holding. In Price, the Supreme Court held that Title VII’s prohibition of discrimination “’because of . . . sex’ . . . mean[s] that gender must be irrelevant to employment decisions,” and Title VII encompasses the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”[note]Id. at 240, 251, quoted in R.G. and G.R. Harris Funeral Homes, 2018 WL 1177669 at *5.[/note] In addition to the sex/gender stereotyping rationale of the Supreme Court, the Sixth Circuit rationalized that “it 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”, and discrimination “because of sex” inherently includes discrimination because of a change in sex.

In the case before the Sixth Circuit, an approximately-6-year employee of the defendant funeral home, whose job entailed interacting with the public, announced her intent to transition from male to female, which required living and working as a female for a year before proceeding with gender reassignment surgery. The funeral home terminated her employment just before she announced she would begin appearing at work as a female. The employee filed a charge with the EEOC, which filed suit on her behalf. The district court held that transgender status is not protected by Title VII, but that the EEOC had stated a Title VII claim under a theory that the funeral home had wrongfully discriminated against the employee because of her failure to conform to sex- or gender-based stereotypes. The Sixth Circuit rejected the district court’s limitation, and expressly held that Title VII includes protections for transgender and transitioning status.

The Sixth Circuit also rejected the funeral home’s (and amici’s) religion-based defenses. The funeral home’s owner claimed a deeply-held religious conviction that a person’s sex is an immutable God-given gift and that by allowing his male employee to work as a female, he would violate God’s will and would be complicit in supporting the idea that sex is a changeable social construct. Based on the particular facts before it, the Sixth Circuit held that the funeral home did not qualify for the ministerial exception to Title VII, which precludes application of Title VII to the employment relationship between a religious institution and its ministers. The Sixth Circuit also considered the funeral home’s defense under the Religious Freedom Restoration Act (“RFRA”)[note]42 U.S.C. § 2000bb[/note], which prohibits the government (not private parties) from enforcing a religiously-neutral law if it substantially burdens an individual’s religious exercise and is not the least restrictive way to further a compelling government interest. In this case, the funeral home could assert an RFRA defense because the EEOC, a government entity, was a plaintiff. The Sixth Circuit accepted that running the funeral home was a “religious exercise” of the home’s owner. The Sixth Circuit, however, ultimately rejected the RFRA defense on other grounds and made several holdings as a matter of law that could be influential in future cases, including: (i) customers’ presumed biases do not establish a substantial burden under the RFRA; (ii) tolerating an employee’s understanding of his/her sex and gender identity is not tantamount to supporting it; and (iii) merely complying with Title VII does not amount to an endorsement of the transgender employee’s views. The Sixth Circuit further held that enforcing Title VII was the least restrictive means of furthering the compelling government interest of combatting discrimination in the workplace.

Given this ruling, employers in the Sixth Circuit should consider adding “transgender and transitioning status” as protected classifications in their anti-discrimination and EEO statements to ensure that supervisors and employees understand the full gamut of what is protected by Title VII under the umbrella term “sex discrimination.” Employers with religious objections may choose to omit the additional classifications in order to preserve potential defenses under the ministerial exception, the RFRA, or other theories not discussed in this blog post. According to the Sixth Circuit’s decision in R.G. and G.R. Harris Funeral Homes, such defenses may not be successful when asserted by a religiously-neutral business, notwithstanding the owners’ or principals’ personal religious beliefs.

*Photo Credit: visibleducts on Foter.com / CC BY-NC

The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.