Sixth Circuit: Title VII Prohibits Discrimination Based on Transgender and/or Transitioning Status

by Shipman & Goodwin LLP

Less than one week after the Second Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination bars discrimination on the basis of sexual orientation, the Sixth Circuit Court of Appeals issued its own landmark Title VII decision finding that the antidiscrimination statute prohibits discrimination against transgender or transitioning individuals even where an employer’s religious exercise may be substantially burdened.

In EEOC v. R.G. & G.R. Harris Funeral Homes, a transgender employee of a closely-held private company was terminated after informing her employer that she had gender dysphoria, intended to transition and present as a woman. In defense of the termination, the employer, a devout Christian, largely relied on the Religious Freedom Restoration Act (“RFRA”), which requires the government to demonstrate a compelling state interest is being furthered in the least restrictive manner in order to substantially burden a person’s free exercise of religion.   Specifically, the employer claimed that having a transgender or transitioning employee would render him complicit in the violation of God’s commands as he “sincerely believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift….” He also claimed that he viewed operating the funeral home as a religious service to grieving families and continued employment of the employee would be a significant burden on his religious practice because 1) mourners would be distracted by the employee’s presentation as a woman, and thus hinder their healing process and 2) he would be forced to close his business or endorse gender dysphoria, which violates his religious beliefs.

The lower court concluded that the employee’s unlawful termination claim in violation of Title VII could not be pursued solely on the basis of transgender and/or transitioning status and that the RFRA prohibited enforcement of Title VII against the employer as doing so was a substantial burden on his free exercise of religious beliefs where other less restrictive enforcement options existed.

The Sixth Circuit reversed the lower court’s ruling and found that discrimination on the basis of transgender and/or transition status violates Title VII. The Court reasoned that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex…[given that] discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.” The Court also noted its prior recognition that Title VII protection extends to gender non-conforming individuals and explained that “[t]here is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity” because “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”

Although the employer asserted two defenses rooted in religion to its impermissible sex discrimination, the Court squarely rejected each. First, the Court concluded that the ministerial exception to Title VII was inapplicable because the funeral home is not a religious institution. Next, the Court found both asserted burdens to be insignificant. In particular, the Court found that as a matter of law “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA” and that “compliance with Title VII—without actually assisting or facilitating [the employee’s] transition efforts—does not amount to an endorsement….” Notably, the Court emphasized that even if the employer’s religious exercise were substantially burdened, requiring Title VII compliance “constitutes the least restrictive means of furthering the government’s compelling interest in eradicating discrimination….on the basis of sex.”

Although state law already prohibits discrimination on the basis of gender identity and/or expression, the Sixth Circuit joins several other federal courts, including the Second Circuit—the authority of which is binding in Connecticut—to make clear that Title VII protection extends to employees who are members of the LGBTQ community. Accordingly, it is critical to seek counsel in advance of employment decisions in which the rights of such employees are implicated, in order to minimize exposure to a Title VII claim.

A full text of the court’s decision can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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