By: Karen L. Piper
The Sixth Circuit Court of Appeals ruled that discrimination based on transgender or transitioning status is covered by Title VII. The case involved a Detroit-area funeral home which discharged a male employee shortly after he notified his employer that he was transitioning to female and intended to dress and present as a woman at work. The funeral home’s owner held a sincere religious belief that “a person’s sex is an immutable God-given gift” and he would be “violating God’s commands” if he were to allow this employee to “deny [his] sex while acting as a representative of [the] organization.” EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424 (6th Cir. March 7, 2018).
The employee filed a charge of discrimination with the EEOC. The EEOC determined the funeral home had discriminated against the employee based on sex and gender identity. The EEOC filed suit on behalf of the employee in federal district court in Detroit. The employer promptly sought dismissal of the lawsuit. The court ruled Title VII does not cover claims based on an employee’s transgender or transitioning status but does cover claims based on an employee’s failure to conform to sex- or gender-based stereotypes. The case proceeded on this theory.
Following completion of discovery, both sides moved for summary judgment. The court ruled there was evidence the employer discriminated on the basis of gender nonconformity, but requiring the funeral home to allow the employee to present as a woman at work substantially burdened the funeral home owner’s exercise of his religious beliefs. The court granted judgment in favor of the funeral home. The EEOC appealed.
The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) affirmed the district court’s ruling that the employer had discriminated against the employee because he did not conform to gender stereotypes. The employer had terminated the employee shortly after he notified the employer that he planned to dress and present as a woman, contrary to the stereotype that men should dress and present as men.
The Court reversed the district court’s initial ruling that transgender and transitioning status were not protected by Title VII. The Court asked if the employee would have been fired if he were a woman seeking to comply with the female dress code. “The answer quite obviously [was] no.” That “in and of itself confirm[ed] that [the employee’s] sex impermissibly affected the employer’s decision.” Thus, discrimination against a transgender or transitioning person is necessarily discrimination based on gender-nonconformity and covered by Title VII.
Having found the employer had engaged in unlawful discrimination, the Court reviewed the employer’s defenses.
The Court rejected a new defense that had been raised in briefs filed by some of the “friends of the court” – that the employee’s claims were barred by the “ministerial exception.” This exception bars discrimination claims brought by employees who work in a ministerial role for a religious organization. The defense did not apply here because the funeral home was not a religious organization. It is not affiliated with any church; its articles of incorporation do not express a religious purpose; its employees are not required to hold any particular religious belief; and it employs and serves individuals of all religions. The employee did not meet any of the tests for serving in a ministerial role: religious job title, religious training, serving as an ambassador of faith or in a leadership role in a religious community, or performing religious functions for the organization.
The Court ruled that allowing the employee to present as a woman at work did not substantially burden the funeral home owner’s religious exercise. And, even if it did, the EEOC’s enforcement of Title VII was the least restrictive means of furthering the government’s compelling interest in eliminating workplace discrimination. The Court rejected the district court’s suggested less restrictive means of furthering this interest, i.e., having the employer adopt a gender-neutral dress code. The case involved much more than a dress code. The employee planned to present as a woman, including dressing as a woman, using the women’s restroom, etc. Having decided the employer’s defense did not excuse its discrimination, the Court granted summary judgment to the EEOC.
This issue of whether Title VII includes protection against discrimination on the basis of gender identity, per se, is a form of sex discrimination likely will have to be decided by the United States Supreme Court. For now, because many courts have ruled Title VII protects against discrimination on the basis of gender nonconformity, employers faced with issues involving a transgender or transitioning employee should consult experienced employment counsel, such as the author, for guidance on how to address these issues.
This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. March 2018.