The U.S. Sixth Circuit Court of Appeals recently upheld a transgender woman’s sex discrimination claim despite her employer’s attempt to use the Religious Freedom Restoration Act (“RFRA”) to shield itself from liability.
In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the Court held that discrimination based on a person’s failure or refusal to conform to sex and/or gender stereotypes, including transgender and transitioning statuses, constitutes illegal sex discrimination under Title VII. The Court also held that an affirmative defense under RFRA cannot defeat a prima facie showing of sex discrimination because enforcement of Title VII is the least restrictive means of achieving the compelling government interest to eliminate such discrimination. This is an important development, as it is the first time that the Sixth Circuit has addressed the extension of Title VII protections to transgender individuals while analyzing the merit of a RFRA defense to such a claim.
Aimee Stephens is a transgender woman who began working as an apprentice for a funeral home in 2007. One year later, she was promoted to Funeral Director. When Ms. Stephens was originally hired, she presented as a man and went by her given name of William Stephens. Several years later, Ms. Stephens informed the owner of the funeral home that she intended to have sex reassignment surgery, but before doing so she had to live as a woman for one year. Several weeks later, the funeral home fired her. Ms. Stephens refused the owner’s severance offer and instead filed a sex-discrimination charge with the EEOC. The EEOC issued a letter of determination based on Ms. Stephens’ discharge and an allegation that the funeral home was not providing its female employees with the same clothing stipend that it provided to its male employees. After failing to settle the case through informal conciliation, the EEOC filed suit in September 2014.
After cross-motions for summary judgment, the federal district court found “direct evidence to support a claim of employment discrimination,” but ruled that RFRA prohibits enforcement of Title VII against the funeral home because it would substantially burden the home’s free exercise of religion. The EEOC appealed to the Sixth Circuit, and Ms. Stephens later intervened after becoming concerned with the EEOC’s shifting priorities under a new administration.
In its opinion, the Court employed two bases for its application of Title VII’s prohibition on sex discrimination to transgender and transitioning persons. First, the Court asked, rhetorically, whether Ms. Stephens would have been fired if she had been a woman who was trying to comply with the women’s dress code. Because the answer was “no,” the Court concluded that the funeral home owner was affected by impermissible motives when he fired Ms. Stephens. Further, the Court held that it is logically impossible to terminate an employee based on the employee’s transgender or transitioning status without, at least in part, considering the employee’s sex. Second, the Court reasoned that a person’s status as transgender unavoidably includes a lack of adherence to gender stereotypes. Therefore, termination based on a person’s status as transgender or transitioning necessarily implicates Title VII’s prohibition on sex discrimination.
The funeral home raised a defense under RFRA, which prohibits the government from substantially burdening the exercise of a person’s sincerely held religious beliefs unless it is to achieve a compelling government interest and the statute is the least restrictive means of furthering that government interest. Over the past few years, RFRA has become a line of defense to such claims, and most recently was at issue in the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, where the Court held that certain organizations can refuse to comply with the Affordable Care Act’s mandate to provide contraception because such provisions would violate their religious beliefs.
Here, the Court held that requiring the funeral home owner to comply with Title VII does not substantially burden his religious beliefs. Even if it did, Title VII is the least restrictive means of achieving the compelling government interest to eliminate such discrimination.
The Sixth Circuit now joins the Second and Seventh Circuits, which have made similar rulings on this issue in recent months. These decisions are juxtaposed with the Eleventh Circuit, which affirmed a lower court’s decision to dismiss a claim based on sexual orientation. The Supreme Court declined to review the Eleventh Circuit decision, but based on the inevitable circuit split, it is likely a matter of time before the Supreme Court decides the issue for the country.