Sixth Circuit Court of Appeals Holds that Termination of Transgender Employee Violates Title VII Prohibition against Discrimination on the Basis of Sex; Defense under the Religious Freedom Restoration Act Rejected

Sixth Circuit Court of Appeals Holds that Termination of Transgender Employee Violates Title VII Prohibition against Discrimination on the Basis of Sex; Defense under the Religious Freedom Restoration Act Rejected

       In a decision rendered yesterday, the Sixth Circuit Court of Appeals considered the case of an employee of a Michigan nursing home. When that employee, Stephens, who had previously presented as male, announced that she was going to begin transitioning to female, including by wearing female clothing, she was fired. After the Equal Employment Opportunity Commission (“EEOC”) became involved, a suit was brought, with the funeral home largely prevailing at the trial court level. On appeal, the Sixth Circuit Court of Appeals has ruled largely in favor of the employee. EEOC v. R. G. & G. R. Harris Funeral Homes, Inc., No. 16-2424 (6^th Cir. March 7, 2018).

Title VII

       Title VII prohibits employers from “discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” As had the trial court below, the Sixth Circuit found that the employee, Stephens, “was fired because of her failure to conform to sex stereotypes, in violation of Title VIII.” Here, because the employer viewed Stephens as being male, a status that could not be altered, even as Stephens sought to transition to a female persona, sex was clearly implicated, and the firing on that basis was improper.

      The funeral home defended on the basis of both the Religious Freedom Restoration Act and the “ministerial exemption.” Under the latter, courts are essentially prevented from scrutinizing the hiring, terms of employment and termination of persons who are ministers of religion. While the owner of the funeral home, Thomas Rost, alleged that it was operated as part of his ministry to those who are grieving, the court found that the company had in fact no overarching religious function and did not hold itself out as representing any particular religion. While it was at least implied that all of the employees were members of some Christian denomination, it was noted that, when performing services for persons of the Jewish faith, the employees would wear yarmulkes. In that the funeral home had “virtually no ‘religious characteristics’” (Slip op at 24), and Stephens was not a “ministerial employee in that “she was not an ‘ambassador of [any] faith.]’ and did not perform ‘important religious functions,’” (Slip op at 25), the ministerial exemption did not apply.

Religious Freedom Restoration Act

       In order to make a successful claim under the Religious Freedom Restoration Act, a defendant “must demonstrate that the government action at issue ‘would (1) substantially burden (2) a sincere (3) religious exercise.’” Slip op. at 28. Accepting that the operation of the funeral home was a religious exercise, the court stated that “the question then becomes whether the Funeral Home has identified any way in which continuing to employ Stephens would substantially burden Rost’s ability to serve mourners.” Slip op. at 29. These allegations were rejected. Claims that allowing Stephens to wear female clothing would be distracting to those at the funeral home were rejected as being based upon assumptions and “but more to the point, we hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” Slip op. at 30. As for the existence of a substantial burden under RFRA, the court rejected the notion that such a burden arises simply by allowing Stephens to dress as she thinks appropriate” [W]e hold that, as a matter of law, tolerating Stephen’s understanding of her sex and gender identity is not tantamount to supporting it.” Therefore, it could not be alleged that Stephen’s continued employment would force Rost to violate his views as to sex being determined at birth and being immutable. Slip op. at 32.

      Continuing the analysis, the court noted that, under RFRA, government action may still be permissible, even if it substantially burdens the exercise of religion, if the required actions are the “least restrictive means of furthering a compelling government interest.” Slip op. at 35. Acknowledging that it did not need to do so, the Sixth Circuit considered the issue, and found that there exists a compelling interest in the elimination of workplace discrimination on the basis of sex such that in this instance, it was found that there exists a compelling interest in eliminating discrimination, and that affording a RFRA based exemption in this instance would “be allowing a particular person – Stephens - to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” Slip op. at 37.

      In conclusion, the Sixth Circuit Court of Appeals wrote:

Discrimination against employees, either because of their failure to conform to sex stereotypes for their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim. RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.