Transitioning on Title VII
Sixth Circuit Becomes First Federal Appellate Court to Confirm Title VII Protections for Transgender and Transitioning Individuals in the Workplace
Why It Matters
"Does Title VII of the Civil Rights Act of 1964 provide protections to LGBT individuals in the workplace?" is currently one of the hottest questions in all of employment law today. For years, the resounding answer to that question offered by the nation's federal appellate courts has been a resounding "no." In the last several years, however, a seismic shift appears to be emerging before our eyes toward a much more expansive definition of what constitutes discrimination "because of . . . sex" under our nation's primary federal anti-discrimination statute. Just recently, the Sixth Circuit Court of Appeals in R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424 (6th Cir. March 7, 2018) became the latest court to weigh in on this hot-button issue when it held that discrimination based on transgender and transitioning status constitutes an actionable form of sex discrimination under Title VII. The Sixth Circuit's decision is a noteworthy one, as the ruling marks the first federal appellate court decision to explicitly hold that Title VII extends specifically to transgender and transitioning employees, providing further support for the growing consensus that Title VII protects LGBT individuals in the workplace setting.
Factual & Procedural Background
Aimee Stephens, who was born biologically male, worked as a funeral director at R.G. & G.R. Harris Funeral Homes. For the first six years of employment at the funeral home, Stephens dressed and presented as a male at work. In 2013, Stephens was terminated from the funeral home shortly after she informed the funeral home's owner, Thomas Rost, that she intended to begin her gender transition and dress as a woman at work. According to Rost, Stephens was terminated because "he was no longer going to represent himself as a man" and because continuing to employ Stephens would violate his and the funeral home's religious beliefs that a person's sex "is an immutable God-given gift."
Stephens filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her termination violated Title VII's ban on sex discrimination. After finding reasonable cause that the funeral home discharged Stephens due to her sex and gender identity, the EEOC filed suit against Stephens's former employer. The district court dismissed the EEOC's action based on its reasoning that Title VII does not extend to cover transgender discrimination, and because the Religious Freedom Restoration Act (RFRA) barred the EEOC from enforcing Title VII against the funeral home, as doing so would impermissibly burden Rost and the funeral home's exercise of their religious beliefs in violation of the RFRA.
Sixth Circuit Ruling
On appeal, the Sixth Circuit reversed the decision of the district court, finding that Stephens had asserted a cognizable claim of sex discrimination under Title VII based on her transgender and transitioning status. In finding in favor of Stephens, the Court relied on two independent, primary rationales.
First, the Sixth Circuit ruled that Stephens was fired because of her failure to conform to sex stereotypes in violation of Title VII. In doing so, the Sixth Circuit held that transgender discrimination constitutes a form of unlawful discrimination because such discrimination constitutes a form of sex stereotyping, which is prohibited under Title VII. The Sixth Circuit found support for this line of reasoning in the United States Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which articulated the well-known rule that Title VII's bar of discrimination "because of . . . sex" means that gender must be
irrelevant to employment decisions. In the Sixth Circuit's opinion, discrimination based on a failure to conform to stereotypical gender norms was no less prohibited under Title VII than discrimination based on "the biological differences between men and women." Thus, sex stereotyping by the funeral home based on Stephens's gender non-conforming behavior constituted unlawful discrimination.
Second, the court also went a step further, finding that Stephens could alternatively pursue a claim that she was discriminated against on the basis of her transgender and transitioning status, as discrimination on the basis of transgender and transitioning status "is necessarily discrimination on the basis of sex." In support of this conclusion, the Sixth Circuit noted that it was analytically impossible to fire an employee based on that employee's status as a transgender individual without being motivated, at least in part, by the employee's sex, and because discrimination "because of sex" inherently includes discrimination against employees because of a change in their sex. As such, the fact that the funeral home's decision to terminate Stephens was based at least partially on Stephens's desire to change her sex established that the funeral home's decision ran afoul of Title VII.
In addition to determining that the funeral home violated Title VII's prohibition on sex discrimination, the Sixth Circuit also rejected the liability defenses asserted by the funeral home as well. In this regard, the court found the "ministerial exception" to Title VII—which precludes application of employment discrimination laws such as Title VII to claims concerning the employment relationship between a religious institution and its ministers—had no application to the funeral home because the funeral home was not a religious organization and because Stephens was not a ministerial employee.
Moreover, the court also rejected the funeral home's argument that the RFRA precluded the EEOC from enforcing Title VII in connection with Stephens's termination. The RFRA bars the government from "substantially burden[ing] a person's exercise of religion" unless the government demonstrates that application of the burden to the person both furthers a compelling governmental interest and is the least restrictive means of furthering that compelling interest. Applied to Stephens's claim, the Sixth Circuit found that the RFRA was inapplicable to shield the funeral home from liability for two separate reasons. First, the funeral home failed to demonstrate that Rost's religious exercise would be substantially burdened by requiring the funeral home to comply with Title VII. In doing so, the court explicitly held that: (1) a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under the RFRA; (2) tolerating an employee's understanding of her sex and gender identity is not tantamount to supporting it; and (3) bare compliance with Title VII—without actually assisting or facilitating Stephens's transition efforts—does not amount to endorsement of Stephens's views. Furthermore, the court held that even assuming arguendo the funeral home was able to establish a substantial burden, the employer still could not assert a valid defense under the RFRA because Title VII's broad proscription in combating discrimination in the workplace was a compelling state interest, and Title VII itself is the least restrictive means for the EEOC to provide workers with equal opportunities in the workplace.
Takeaways
In recent years, a significant battle has been waged in both state and federal courts across the nation as to whether Title VII's prohibition against discrimination "because of . . . sex" extends to discrimination based on an employee's sexual orientation and/or gender identity. The R.G. & G.R. Harris Funeral Homes decision is noteworthy, as it marks the first time a federal court of appeals has explicitly held that transgender discrimination is covered under Title VII even in the absence of any showing that the employee did not conform to traditional gender stereotypes. Furthermore, the Sixth Circuit's decision solidifies the current position maintained by the EEOC that discrimination against transgender or transitioning individuals is actionable under Title VII.
The Sixth Circuit's ruling is also significant because it continues a recent trend of federal appellate court rulings favoring a much more expansive view of the proper scope of "sex discrimination" under Title VII. The R.G. & G.R. Harris Funeral Homes decision comes on the heels of two federal appellate decisions from the Seventh and Second Circuits in Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017) and Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. Feb. 26, 2018), in which both courts held that sexual orientation discrimination constitutes unlawful sex discrimination under Title VII. While the debate is far from settled as to whether Title VII applies to LGBT employees, the R.G. & G.R. Harris Funeral Homes decision further signals a growing consensus among the federal appellate courts that supports an interpretation of "sex" discrimination that is vastly broader in scope as compared to years past, and one which extends to provide protections to sexual minorities in the workplace. Combined, the Hively, Zarda, and R.G. & G.R. Harris Funeral Homes decisions strongly indicate that we may soon reach the tipping point for providing across-the-board protections against discrimination for LGBT workers under our nation's primary federal anti-discrimination statute. Ultimately, however, until a definitive ruling is issued by our nation's highest court, at least for the time being LGBT employees will continue to lack comprehensive affirmative protections across the country under federal law against discrimination in the employment setting.
"Transitioning on Title VII," by David J. Oberly was published in the September/October 2018 edition of Ohio Lawyer, the member magazine of the Ohio State Bar Association. Reprinted with permission.