Last month, with its decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) the Sixth Circuit broadened Title VII protection to include protection for individuals who are transgender or transitioning. The Court did not mince words, holding without question that “discrimination on the basis of transgender and transitioning status violates Title VII.” Harris Funeral Homes follows a recent Second Circuit decision holding that sexual orientation is protected under Title VII, which was reported previously on this blog.

The case concerned Aimee Stephens, a transgender woman who was fired after telling her employer she was transitioning and would begin presenting as a woman at work. Ms. Stephens’ supervisor at the funeral home where she had worked for five years testified that Ms. Stephens was terminated because she was “no longer going to represent himself as a man” and “wanted to dress as a woman” which would be unpalatable to the public. The employer prevailed in the lower court by arguing that forcing it to employ Ms. Stephens violated its sincerely held religious beliefs under the Religious Freedom Restoration Act (“RFRA”), and that enforcing Title VII was not the least restrictive way to protect Ms. Stephens. Interestingly, neither the funeral home nor Ms. Stephens’ supervisor claimed to have a religious affiliation.

On appeal, the Sixth Circuit reasoned that transgender or transitioning status is protected by Title VII’s prohibition against sex discrimination in employment because discrimination on the basis of those statuses cannot be separated from discrimination on the basis of non-conformity with stereotypical gender norms, which is already protected under the court’s precedent in Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004) and Supreme Court precedent from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As to the employer’s free exercise of religion defense, the Sixth Circuit reversed the district court’s decision, holding that forcing the funeral home to comply with Title VII did not meet the RFRA’s substantial burden requirement, in part because the funeral home could not rely on the presumed gender biases of its customers to establish a substantial burden on its free exercise of religion.

The Sixth Circuit’s addition of gender identity as a protected class under Title VII aligns it with the law in the Second and Seventh Circuits. The decision widens the split among federal courts, as it conflicts with a recent holding by the Fourth Circuit, which encompasses Maryland, holding that Title VII does not include sexual orientation as a protected class. Murray v. N. Carolina Dep't of Pub. Safety, 611 F. App'x 166 (4th Cir. 2015). This split may prime the issue for eventual Supreme Court consideration.  However, employers must still recognize that sexual orientation, gender identity and gender expression may be protected under state law, regardless of the federal court decision in their area. For example, under Maryland’s anti-discrimination in employment law, sexual orientation and gender identity are protected classifications. Therefore Maryland employers should include sexual orientation and gender identity as protected classifications in their anti-discrimination and anti-harassment policies, and address such discrimination in their anti-harassment and anti-discrimination policies and training.

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