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Sixth Circuit Says Title VII Protects Transgender Employees

    Client Alerts
  • March 12, 2018

On the heels of last week’s Second Circuit decision finding sexual orientation discrimination prohibited under Title VII, on Wednesday, a Sixth Circuit Court of Appeals panel held that Title VII likewise protects transgender employees against adverse action based on their employers’ reaction to their professed gender identity. Moreover, the court rejected the employer’s assertion that the Religious Freedom Restoration Act (RFRA) creates an exception to Title VII for employers that have personal religious objections to hiring transgender persons.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the plaintiff was born biologically male and worked as a funeral director for the defendant. The plaintiff was terminated by the company’s owner shortly after informing him that she intended to transition from male to female and begin wearing women’s clothing to work. The employer responded to the EEOC’s lawsuit challenging the termination by asserting that allowing the plaintiff to continue working at the funeral home would place an unjustified substantial burden on the owner’s sincerely held religious beliefs, as prohibited under RFRA. The district court granted summary judgment for the employer.

On appeal, the Sixth Circuit reversed this decision, remanding the suit for further proceedings. First, the court found that transgender discrimination falls squarely within Title VII’s protections.  The employer’s reactions to the plaintiff’s gender expression constituted an impermissible stereotype of how people of one gender are supposed to appear and behave. Also, the court held that gender identity cannot be separated from Title VII’s gender protections.

Next, the Sixth Circuit analyzed the RFRA argument. The owner claimed that his religious beliefs made one’s birth gender immutable, and that authorizing or paying a male employee who presented herself as female would place a substantial burden on the exercise of his religious beliefs. The court rejected this argument, noting that the funeral home was a secular business and the plaintiff’s religious practices were not necessary to assist mourners. The reaction of the business’ clients to a transgender director could not be used to establish this burden. Finally, the Sixth Circuit stated that tolerance of an employee’s gender expression is not tantamount to an endorsement of that choice.

In the end, the court refused to consider the owner’s personal religious beliefs as overriding the compelling public interest of preventing employment discrimination. Even under the highest level of legal scrutiny, these beliefs do not trump federal civil rights laws. This part of the decision stands in contrast to recent positions adopted by the U.S. Department of Justice, which appear to give primacy to personal religious beliefs over federal legal protections for employees. When combined with the recognition of Title VII as applicable to gender identity discrimination, this decision results in a major victory for those favoring an expansive reading of federal civil rights protections.