The Sophisticated Employer Blog

No hedging.  Not “under these circumstances.” It is now the law binding all federal courts located within the Sixth Federal Circuit, which includes Michigan, Ohio, Kentucky and Tennessee. 

Discrimination against an individual because they are transitioning to the other sex, or because they are transgender is unlawful under Title VII. EEOC v R.G. & G.R. Harris Funeral Homes, was decided on March 7 by the U.S. Court of Appeals for the Sixth Circuit.

In a lengthy, published opinion, the appellate court analyzed whether such discrimination was, by its very nature, a form of sex discrimination and concluded that it was “inherently“ a gender non-conforming trait under the United States Supreme Court decision in Price Waterhouse v Hopkins, 490 US 228(1998).

In Price Waterhouse the Supreme Court held that discrimination “‘because of …sex’…mean[s] that gender must be irrelevant to employment decisions.” Since then, employment decisions based on sex stereotyping have been unlawful and now terminating an employee because “he” no longer wanted to represent himself as a man and but now would dress as a woman falls squarely within the prohibitions of Title VII of the Civil Rights Act of 1964. 

That was the reason for the termination of employment of Aimee Stephens, according to the owner of R.G. & G.R. Harris Funeral Homes. Funeral Director Aimee, previously Anthony, was born biologically a male but was fired after informing the owner of the funeral home of her transition and that she would be dressing as a woman at work. The appellate court not only reversed the lower court’s ruling in favor of the funeral home, it granted summary judgment to the Equal Employment Opportunity Commission (“EEOC”), ruling in favor of it as a matter of law.

In the process, the appellate court also questioned the validity of Vickers v Fairfield Medical Center, 453 F3d 757 (CA 6, 2006), which had held that a claim involving sexual orientation must allege discrimination for failing to “conform to traditional gender stereotypes in any observable way at work” because if discrimination based on sexual orientation, by itself, would state a claim, it would “impermissibly ‘bootstrap protection for sexual orientation into Title VII.’”  The “observable at work“ requirement was at odds with other Sixth Circuit cases which have recognized that a claim under Title VII for discrimination may be based on gender nonconformance expressed outside of work.

The appellate court also rejected the funeral home‘s defense of the ministerial exception to Title VII, which is rooted in the Constitution’s First Amendment since the funeral home is not a religious institution and Aimee was not a ministerial employee. The Religious Freedom Restoration Act defense also failed since EEOC met its burden of showing a compelling government interest – eliminating sex discrimination in the workplace, which includes discrimination based on transgender status – and the funeral home failed to show that the owner’s religious exercise would be substantially burdened by requiring the funeral home to comply with Title VII and there was no other less restrictive means of accomplishing the goal under the circumstances. 

The opinion is nearly 50 pages long with a lot of interesting analysis that could not be set forth in any substantial way in this post. But it makes for an interesting read. Click here to read the ruling.

The important thing to know is that it is no longer just the EEOC’s position that transgender status is protected under Title VII, it is also the law in the Sixth Circuit, unless and until the Supreme Court weighs in and holds opposite.