On March 7, a Sixth Circuit Court of Appeals panel held that employers cannot discriminate against employees based on their transgender or transitioning status, notwithstanding the employer’s sincere religious objections.

In EEOC v. R.G. & G.R. Harris Funeral Homes, the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired as a result of declaring her intent to transition from male to female. The owner of the funeral home stated that keeping Stephens on staff would make the owner complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift” and violate his religious beliefs that were protected under the Religious Freedom Restoration Act (RFRA).

The court found that the funeral home violated Title VII, which prohibits discrimination on the basis of sex. The court found 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.” The court’s opinion relied on “settled law” that prohibits “sex stereotyping based on a person’s gender non-conforming behavior.” It stated: “Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

The court rejected the funeral home’s argument that its owner’s sincerely-held religious beliefs provided a defense to liability under Title VII. Although the court acknowledged that religious institutions are protected from certain discrimination claims when the action taken is critical to the religious function of the institution, the court held that the funeral home was not a religious institution and its owner was not a ministerial employee. The court also rejected the funeral home’s arguments under RFRA, finding that accommodating Stephens’ request to represent herself as a woman and requiring the owner of the funeral home to “comply with Title VII’s proscriptions on discrimination does not substantially burden his religious practice” in violation of RFRA.

If you have general questions about the decision or its impact, please call the division of legal services. For specific legal advice, please contact your district’s legal counsel.  

*OSBA wishes to thank Olentangy Liberty High School student and OSBA mentee Devin Donnelly for her contributions to this article.

Posted by Sara C. Clark on 3/22/2018