Sunday, March 11, 2018
On Wednesday, March 7, 2018, the United States Court of Appeals for the Sixth Circuit ruled that Title VII of the Civil Rights Act of 1964 explicitly prohibits employment discrimination against transgender persons. The court also ruled that the Religious Freedom Restoration Act (“RFRA”) may not be used as a shield to justify discrimination against LGBTQ employees. In its decision, the court rejected t e legal theory, rooted in the Supreme Court’s Hobby Lobby decision, that businesses may fire or mistreat protected employees under the guise of religious liberty.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, Aimee Stephens, a transgender woman who worked as a funeral director, started her employment presenting as male, the sex she had been assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.”
The EEOC brought suit on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII. The district court concluded that Stephens had suffered sex discrimination, but not specifically because she was transgender. Rather, the district court held that Stephens had suffered sex discrimination because, consistent with Hopkins and its progeny, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though she had been subjected to sex discrimination, the funeral home had a right to terminate her under RFRA, even though the funeral home was not affiliated with any specific religious institution. The district court held that RFRA protected their personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In her opinion for the Court of Appeals, Judge Karen Nelson Moore rejected the analysis of the district court regarding both the reach of Title VII in providing protection for transgender persons and the availability of RFRA as a shield behind which an employer is free to engage in otherwise unlawful conduct. Judge Moore wrote that Title VII does specifically outlaw employment discrimination against transgender persons for two distinct reasons. First, Title VII prohibits discrimination against persons for failing to conform to expected gender stereotypes. As Judge Moore explained, in firing Stephens because she was transitioning, Rost penalized her for failing to conform to the sex assigned to her at birth. Judge Moore wrote, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Second, and more important, Judge Moore concluded that discrimination against transgender persons is inherently sex based, in 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.” Where an employer discriminates against an employee because of her “transgender or transitioning status,” that employer is necessarily taking sex into account—in violation of Title VII.
Regarding the district court’s conclusion that RFRA provided protection for the employer’s discriminatory conduct, Judge Moore rejected this analysis. For RFRA to serve as a shield for discriminatory conduct, RFRA requires a showing that there has been a “substantial burden” on “religious exercise,” that is not “in furtherance of a compelling government interest” and/or “the least restrictive means of furthering” that interest. In this case, the funeral home claimed that the presence of a transgender employee would (1) “often create distractions for the deceased’s loved ones” and (2) force Rost to leave the industry, because working with a transgender person was an infringement on his religious beliefs.
Judge Moore concluded that neither of these constituted substantial burdens on Rost or the funeral home. Regarding the first claimed burden, Judge Moore stated that employers cannot escape the requirements of Title VII simply by assuming the “presumed biases” of their customers. With regard to the second claimed burden, Judge Moore wrote that “tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Judge Moore asserted that Stephens did not ask Rost, in any way, to endorse or to aid her transition. Rather, she only sought to remain on staff at the funeral home. According to Judge Moore, allowing her to remain employed does not “substantially burden his religious practice.”
In conclusion, Judge Moore asserted that even were Title VII to impose a “substantial burden” on Rost’s religious beliefs in this case, it would still survive scrutiny under RFRA, in that eliminating or preventing employment discrimination because of sex is clearly a “compelling interest,” and no less “restrictive means” of forbidding such discrimination exist other than the enforcement of the law. Otherwise, according to Judge Moore, all modern civil rights law would be called into question.
While it is not yet clear whether the funeral home plans to seek an en banc rehearing of this case or seek certiorari in the Supreme Court, in this decision, the Sixth Circuit joins with the Second Circuit and the Seventh Circuit in concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation and gender identity. While the Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit raising this question, the Supreme Court ultimately will have to address this issue.