Transgender Employee Rights Expanded by 6th Circuit Ruling

Author: David B. Weisenfeld, XpertHR Legal Editor

March 26, 2018

Title VII of the Civil Rights Act bans discrimination because of an employee's transgender or transitioning status, the 6th Circuit Court of Appeals has ruled. In EEOC v. R.G. and G.R. Harris Funeral Homes, the Cincinnati-based appellate court held that discrimination on the basis of transitioning status is necessarily discrimination based on sex.

The case involved a funeral home director who presented as a man and told his boss in a letter that she had struggled with "a gender identity disorder her entire life" and informed him that she had "decided to become the person that [her] mind already is."

The letter stated that the director intended to have sex-reassignment surgery and that the first step would be to live and work full time as a woman for one year. Toward that end, the director stated that she would return from an upcoming vacation as Aimee Stephens and dress in appropriate business attire.

Just before Stephens left for her vacation, the funeral home owner fired her. He said, "This is not going to work out," and offered Stephens a severance agreement if she "agreed not to say or do anything."

The employer defended that Stephens' transition would have placed a substantial burden on its sincerely held religious beliefs. The owner believed that authorizing or paying for a male funeral director to wear a uniform for female directors would render him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."

But in siding with the fired funeral director, the 6th Circuit found the EEOC should have the opportunity to prove that the employer violated Title VII by firing Stephens because of her transition.

Writing for the court, Circuit Judge Karen Nelson Moore said, "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."

Judge Moore also noted that simply permitting Stephens to wear attire that reflects a conception of gender that conflicts with the owner's religious beliefs would not be a substantial burden under the Religious Freedom Restoration Act.

The appellate court's ruling comes on the heels of the 2nd Circuit Court of Appeals decision earlier this month in Zarda v. Altitude Express that Title VII bans discrimination on the basis of sexual orientation.