On March 7, 2018, the Sixth Circuit Court of Appeals joined a number of other federal appellate courts in holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination against LBGT employees. In a long-awaited decision on a largely controversial topic, Circuit Judge Karen Nelson Moore handed down the Sixth Circuit’s landmark decision in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., which expressly held that discrimination on the basis of transgender or transitioning status violates Title VII’s prohibition of discrimination on the basis of sex, and that employers may not use the Religious Freedom Restoration Act (RFRA) to justify discrimination against LGBTQ workers.
The case centers around Aimee Stephens, a transgender woman. When she began her job as a funeral director, Stephens presented as male, the sex she was assigned at birth. But, later, she told her boss that she had a gender identity disorder and planned to transition to a woman. Her boss immediately fired her, and later testified that he fired Stephens because she was “no longer going to represent himself as a man” and “wanted to dress as a woman.”
The Equal Employment Opportunity Commission (EEOC) sued on Stephens’ behalf, alleging unlawful discrimination based on sex under Title VII. The ACLU later joined the case to represent Stephens as well. A district court granted summary judgment and held that Stephens had suffered sex discrimination, not because she was transgender but because she was subjected to impermissible sex stereotypes. However, the district court nevertheless concluded that RFRA precluded the EEOC from enforcing the Title VII claim against the employer because doing so would burden the employer’s religious exercise.
The Sixth Circuit expressly overruled the district court’s decision. Judge Moore first held that Title VII does prohibit employment discrimination of LGBT individuals. Her reasoning was twofold:
- Anti-trans discrimination is inherently sex-based, and
- Discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.
Judge Moore writes, “it is analytically impossible to fire an employee based on the employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Therefore, any employer who terminates a worker on the basis of his or her transgender or transitioning status is taking sex into account and is, thus, violating Title VII. Judge Moore then turned to the RFRA which states that any “substantial burden” on “religious exercise” must be to further a compelling government interest.
The employer, here, claimed two burdens:
- The presence of transgender employees would create distractions for the deceased’s loved ones, and
- The presence of transgender employees would force the employer to leave the industry (because working with transgender individuals infringes upon his religious beliefs).
According to Judge Moore, neither of those burdens qualify as substantial because an employer’s fears for its customers and/or presumed biases do not give an employer license to discriminate in violation of Title VII. Stephens never asked her employer to endorse her transition, but only to remain employed. “Tolerating Stephens’ understanding of her sex and gender identity,” Judge Moore notes, “is not tantamount to supporting it.”
As a result of this decision, it is now clear that, within the Sixth Circuit, discrimination against transgender individuals constitutes sex discrimination under Title VII.