While the debate is still not settled as to whether Title VII’s prohibition on sex discrimination applies to LGBTQ workers, at least one more federal appeals court has officially weighed in on the subject. On March 7, 2018, the Sixth Circuit Court of Appeals held that federal anti-discrimination laws include protections for transgender and/or transitioning employees.

Firing of transgender worker leads to sex discrimination lawsuit

Aimee Stephens (formerly known as Anthony Stephens) was employed as a funeral director for R.G. & G.R. Harris Funeral Homes, Inc. in Michigan.  After she notified the funeral home of her plans to transition from male to female and to present herself as a woman at work, she was terminated.  Thereafter, the Equal Employment Opportunity Commission filed suit against the funeral home, arguing Stephens was terminated based on unlawful Title VII sex discrimination. The funeral home’s owner, Thomas Rost, argued the company was entitled to a defense under the Religious Freedom Restoration Act (RFRA), claiming that it was against his Christian religious beliefs to employ someone who was born biologically as a male but dressed and acted like a woman.

District court’s ruling reversed

In 2016, the federal district court ruled in favor of the funeral home.  However, this past week, the Sixth Circuit Court of Appeals reversed the lower court’s ruling, instead holding that the RFRA did not provide a defense to the funeral home.  The Sixth Circuit explained that the funeral home’s continued employment of Stephens would not substantially burden Rost’s religious exercise, but that even if it did, enforcing Title VII in this situation was the least restrictive means of furthering the EEOC’s interest in combating sex discrimination.  Further, the funeral home could not rely on any customer “presumed biases” or any alleged distractions to establish a burden under the RFRA.  The appeals court ruling also stated that any discrimination on the basis of transgender and transitioning status was necessarily discrimination on the basis of sex and fell exactly into “sex-based discrimination,” which is forbidden under Title VII.

The takeaway

This decision not only adds to the growing number of federal courts that are expanding the scope of “sex discrimination” under Title VII, but also explicitly limits employers’ abilities to defend EEOC claims against them based on alleged exercise of religious freedom.

Time will tell if the U.S. Supreme Court will step in to settle this dispute among the nation’s courts and provide clarity as to whether LGBTQ employees can claim protection from sex discrimination under Title VII.

• Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 WL 1177669 (6th Cir. Mar. 7, 2018)