Transgender Employee’s Rights Protected As Sex Discrimination Under Title VII
The Sixth Circuit Court of Appeals issued an important decision in March 2018 concerning the rights of transgender employees in the workplace. In EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit held that:
- Title VII of the Civil Rights Act of 1964 as amended (Title VII) applies to transgender employees, and
- Religious Freedom Rights Act (RFRA) (42 U.S.C. Section 2000bb-4 et seq.) was not an effective defense to enforcement under Title VII.
Aimee Stephens worked for six years as William Stephens, an employee of the R.G. & G.R. Harris Funeral Homes. After she told her employer that she was transitioning from being a man to a woman, owner of the funeral home fired her because he believed a person’s sex is an “immutable God-given gift”, and he perceived his customers would find her status as a transgender woman offensive. The Equal Employment Opportunity Commission (EEOC) asserted claims under Title VII on Ms. Stephens’ behalf. The funeral home owner argued Title VII did not cover transgender employees, and even if it did, enforcement violated his rights under RFRA.
Transgender Employees Are Protected Under Title VII’s Sex Discrimination Provision
Title VII does not expressly prohibit discrimination on the basis of an employee’s sexual orientation, gender identity, or being transgender. Nevertheless, EEOC has included all three in its interpretation of Title VII sex discrimination, and the Second and Seventh Circuit Courts of Appeals recognized in the last year that sexual orientation is a form of sex discrimination under Title VII. In issuing the decision in Stephens, the Sixth Circuit Court of Appeals became the first federal court of appeals to rule that Title VII sex discrimination applies to transgender employees.
EEOC’s Enforcement Effort Did Not Violate Religious Freedom Rights Act
Federal courts will likely grapple more often in the near future with the charged national climate surrounding balancing religious freedom and LGBTQ rights in the workplace. Congress enacted RFRA to address the balance between an individual’s exercise of their religion with the government’s interest in enforcing the laws enacted by Congress. RFRA requires that federal laws which impose a “substantial burden” on the religious liberty of an individual be the “least restrictive means” of furthering a “compelling government interest”. The Sixth Circuit accepted the owner’s religious beliefs as being genuinely held, but found that enforcement of Title VII in his workplace would not substantially burden his exercise of his religious beliefs because continuing to employee Ms. Stephens was not “tantamount to supporting” her beliefs concerning her gender identity. The owner also could not use his unsupported speculation about his customer’s perceptions of a transgender employee to support showing a “substantial burden” on his exercise of his religion. In language that could expand the scope of the decision if it is adopted by other federal courts of appeal, the Sixth Circuit announced that even if the owner of the funeral home established that obligating him to continue to employ Ms. Stephens was “substantially burdensome” to him, EEOC’s enforcement of Title VII was the least restrictive way of enforcing their compelling interest in eradicating discrimination in the workplace.
The impact of Stephens case in Wisconsin is uncertain because the decision is not binding in the Seventh Circuit, which hears appeals from our federal district courts. Nevertheless, because the Seventh Circuit issued its decision in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) which recognized that Title VII protects employees who are discriminated against because of their sexual orientation, the court may be receptive to an interpretation of Title VII that protects transgender employees.
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