Title VII Prohibits Transgender Discrimination, 6th Circuit Rules

 

By Jeffrey Rhodes March 28, 2018
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​The 6th U.S. Circuit Court of Appeals ruled that a funeral home unlawfully fired its director after he notified the owner he was transitioning from male to female and that the funeral home's actions were not protected by the Religious Freedom Restoration Act (RFRA).

The plaintiff worked as the funeral director for R.G. & G.R. Harris Funeral Homes Inc., a closely held business that operates three funeral homes in Michigan. The business was primarily owned and operated by a devout Christian, who believed that his calling was to comfort the grieving through his business. While the funeral home displayed devotionals and religious tracts, it did not have overtly religious décor and it hired employees without regard to their religious beliefs. It performed funerals for people of all faiths and required employees to work on certain Christian holidays, including Easter.

The funeral home required its public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and business jackets. The funeral home provided all male employees who interacted with clients, including funeral directors, with free suits and ties, and it replaced suits as needed. The funeral home did not provide its female employees with any sort of clothing or clothing allowance.

In July 2013, the plaintiff provided the funeral home owner with a letter stating that he had struggled with "a gender identity disorder" and had decided to live as a woman rather than a man. According to the letter, the plaintiff would live and work full time as a woman for the next year and then would undergo sex reassignment surgery. The plaintiff intended to return to work from a vacation scheduled for August 2013 "as [her] true self ... in appropriate business attire."

[SHRM members-only toolkit: Managing Gender Transition in the Workplace]

The plaintiff was fired just before leaving for vacation. The funeral home owner told the plaintiff, "This is not going to work out" and offered the plaintiff a severance agreement, which was declined. The funeral home owner testified that he fired the plaintiff for dressing as a woman in the workplace and that he sincerely believed that the Bible teaches that a person's sex is an immutable God-given gift. By allowing the plaintiff to represent the funeral home while dressing as a woman, the funeral home owner believed he would be violating God's commands.

The plaintiff filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC), claiming that the only explanation the funeral home gave for termination was that the public would not be accepting of the plaintiff's transition. To the plaintiff's knowledge, there had never been any female directors at the funeral home. The EEOC investigated the plaintiff's allegations and learned from another employee that the business did not provide its public-facing female employees with clothing or a clothing stipend.

The EEOC issued a letter of determination in June 2014, in which it stated that there was reasonable cause to believe that the funeral home discharged the plaintiff because of sex and gender identity as a female in violation of Title VII and that the home discriminated against its female employees by providing male employees with a clothing benefit which was denied to females.

The EEOC filed a complaint against the funeral home in district court in September 2014. The funeral home moved to dismiss the EEOC's action for failure to state a claim. The district court narrowed the plaintiff's claim but allowed it to proceed. The parties then cross-moved for summary judgment.

The district court ruled in favor of the funeral home, finding that the RFRA precludes the EEOC from enforcing Title VII against the funeral home, as doing so would substantially burden the funeral home owner and the establishment's religious exercise. The district court found that the EEOC could have achieved its goals by proposing that the funeral home impose a gender-neutral dress code. The court also found that the commission lacked jurisdiction to consider the gender discrimination claim based on the difference in clothing allowance.

On appeal, the 6th Circuit overruled the district court and entered summary judgment in the plaintiff's favor. The appeals court found that the funeral home was not an overtly religious institution and that the plaintiff's job was not of a ministerial nature. It further found that Title VII prohibits transgender discrimination as based on sex and sex stereotypes and that the funeral home and its owner's exercise of religion was not substantially burdened under the RFRA by EEOC enforcement. Even if the religious exercise were substantially burdened, the court found, the EEOC had a compelling interest in ending sex discrimination in the workplace.

The appeals court further ruled that the clothing allowance discrimination claim should proceed and sent that claim to the district court for further consideration.

EEOC v. R.G. & G.R. Harris Funeral Homes Inc., 6th Cir., No. 16-2424 (March 7, 2018).

Professional Pointer: Federal law prohibits discrimination based on sex and sex stereotypes, which many courts are now interpreting to include discrimination against transgender individuals. There do not appear to be any exceptions for businesses owned by individuals with religious convictions, even for positions with public-facing roles that may represent the establishments to clients.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

 

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