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Discrimination Based on Transgender Status Violates Title VII

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. 6th Circuit Court of Appeals No. 16-2424, the U.S. Court of Appeals for the Sixth Circuit recently ruled that discrimination based on an employee’s transgender status is discrimination based on “sex” in violation of Title VII of the Civil Rights Act of 1964.  The Sixth Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee, is the first such federal appellate court to so rule.

The employer, R.G. & G.R. Harris Funeral Home, employed Stephens beginning October 1, 2007.  At the time she was hired, Stephens presented as a male.  In July of 2013, Stephens informed the owner that she intended to begin living and working as a woman when she returned from her vacation in August of 2013.  The employer terminated Stephens just before she left for her vacation.  Stephens filed a complaint with the EEOC alleging she was discriminated against based on her sex.  The EEOC found there was reasonable cause to believe the funeral home terminated Stephens due to her sex and gender identify in violation of Title VII.  The EEOC also found the funeral home discriminated against its female employees because it provided male employees with a clothing benefit that it did not provide to its female employees.

The EEOC filed a complaint against the funeral home in the United States District Court for the Eastern District of Michigan.  The District Court narrowed the wrongful termination claim by finding Stephens’ transgender status was not protected under Title VII.  However, the court ruled that the EEOC could proceed under the theory that Stephens was terminated based on her failure to conform to the funeral home’s expectations of sex or gender based stereotypes.  Both the employer and the EEOC filed motions for summary judgment.  The court found that the employer terminated Stephens based on her “failure to conform to sex stereotypes” in violation of Title VII.  However, the court then agreed with the employer’s defense that the application of Title VII would force it to violate its sincerely-held religious beliefs.  Therefore, the district court found the employer was exempt from Title VII pursuant to the Religious Freedom Restoration Act of 1993.

On appeal, the Sixth Circuit Court of Appeals reversed the district court’s decision, and found that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  The court then analyzed the employer’s argument that it was exempt from Title VII under the Religious Freedom Restoration Act (RFRA).  The court found that the EEOC had a compelling interest in combating discrimination in the workforce, and that permitting Stephens to remain employed while she underwent a gender transition was not unduly burdensome on the employer’s religious convictions. The court stated that “enforcing Title VII is itself the least restrictive way to further the EEOC’s interesting in eradicating discrimination based on sex stereotypes from the workplace.”

The Harris decision makes it clear that employers may not discriminate, harass, or retaliate against transgender employees under the guise of religious freedom.  As a result, employers should review their policies and practices, and take all necessary steps including training of managers and supervisors, to prevent harassment, discrimination, or retaliation against transgender employees.

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