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Attorneys weigh in on 6th Circuit transgender ruling

SHERRY KARABIN
Legal News Reporter

Published: April 13, 2018

Employers in Ohio and three other states are being advised to update policies and provide training to ensure that transgender and transitioning employees receive the same treatment as other groups that are protected under Title VII of the Civil Rights Act of 1964.

This after a recent 6th Circuit Court of Appeals ruling in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. put businesses on notice that transgender and transitioning employees are covered under the federal law.

“Since the 1960s, the courts have been struggling with the issue of how broadly to interpret this statute,” said Samuel Lillard, a partner at the management-side labor and employment law firm Fisher Phillips. “This statute makes it unlawful for an employer to discriminate against any employee ‘because of sex.’

“There is no question that this statute protects biological sex,” said Lillard. “The U.S. Supreme Court later expanded coverage under this statute to include protections for employees who do not fit sexual stereotypes in Price Waterhouse v. Hopkins 490 U.S. 228 (1989).

“The Supreme Court has yet to take up the issue of whether transgender and transitioning individuals are protected, but the 6th Circuit has now ruled that the issue falls within sex and stereotyping, which are already protected under the law.”

Susan Rodgers, an employment and labor law partner at Buckingham, Doolittle & Burroughs said the March 7 ruling by the 6th Circuit has removed any uncertainty about an Ohio employer’s obligation to treat transgender and transitioning employees equally.

“In 2004, the court came close to determining that Title VII protected transgender and transitioning employees per se,” said Rodgers, who serves as employment & labor practice group leader. “In Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Circuit 2004), the court recognized that a transgender person is someone who ‘fails to act and/or identify with his or her gender’ and determined that a transgender (male to female) employee could not be discriminated against for being more feminine.

“Although the court did not expressly hold that discrimination based upon transgender status was unlawful, the other appellate courts essentially read it that way,” said Rodgers.

In the 6th Circuit case, the Equal Employment Opportunity Commission (EEOC) sued on behalf of Aimee Stephens, a transgender woman who worked as a funeral director at R.G. & G.R. Harris Funeral Homes in Detroit, Michigan.

Stephens, who was born biologically male, started working at the funeral home as an apprentice in October 2007 under her then given name William Anthony Beasley Stephens.

The following year, Stephens became funeral director/embalmer, a title that she held until August 2013 when she was fired by the owner, Thomas Rost, after informing him of her intention to transition from male to female and represent herself as a woman (Aimee Stephens) while at work.

Stephens filed a Title VII gender discrimination claim with the EEOC, alleging she was discriminated against on account of her “sex.”

The EEOC and Rost both filed motions in Michigan federal court, seeking summary judgment.

Rost contended he was simply requiring Stephens to comply with a sex-specific dress code.

He also argued that being forced to employ Stephens while she dressed and represented herself as a woman would “constitute an unjustified substantial burden” upon his “(and thereby the funeral home’s) sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act.” 

The district court granted summary judgment to the funeral home.

Lillard said the district court ruled that transgender status is not a protected trait under Title VII, but allowed the claim on the basis of sex-based stereotyping. However, he said the court concluded that the Religious Freedom Restoration Act (RFRA) barred the claim from moving forward due to Rost’s religious practices.

The 6th Circuit reversed the lower court ruling.

In the opinion the court wrote, “First, 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 6th Circuit concluded, “Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

The court also explained, the “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.”

“The court made it clear that discriminating against an employee’s transgender status was similar or the same as doing so based on a person’s biological sex or sex stereotyping,” said Lillard.

“The court clarified that the RFRA did not trump Title VII since the essential elements of an RFRA defense were not present in this case,” he said. “For example, the 6th Circuit held that bare compliance with the law prohibiting discrimination is not the same as an endorsing transgender views and does not conflict with the owner’s views.

“In other words, tolerance of the views of others is not the same as accepting those views,” said Lillard. “Therefore the 6th Circuit held that the owner’s religious views were not infringed upon by the EEOC.

“While Title VII is a federal statute, this form of discrimination might also be illegal under Ohio law since Ohio law is interpreted based on Title VII,” said Lillard.

“The 6th Circuit covers Ohio, Michigan, Tennessee and Kentucky and it is a very well respected and conservative circuit,” he said. “The circuit’s opinion will likely lead to similar decisions in other circuits.”

Lillard said attorneys at Fisher Phillips have been advising clients for many years about the importance of treating everyone fairly, adding, “this decision reinforces that advice.”

Rodgers said based on her experience and communications with the Ohio Civil Rights Commission, even though transgender or transitioning status is not specifically identified under the Ohio anti-discrimination statute, “the same analysis of an individual being gender nonconforming would be covered under Ohio’s statute and there is the possibility that it may adopt the discrimination per se view articulated by the 6th Circuit.

“As a result of the 6th Circuit ruling, I am recommending that my clients update their EEO policies to include transgender and transitioning employees,” Rodgers said.

As for the issue of sexual orientation, Lillard said the 6th Circuit has previously ruled that sexual orientation discrimination, involving discrimination based on an employee’s sexual preference is not covered under Title VII, because it is not based on biological sex. 

“So far the 6th Circuit has continued to decline to follow the 2nd and the 7th Circuit rulings that sexual orientation discrimination is encompassed by Title VII’s bar on sex discrimination,” said Lillard.

Although sexual orientation is not covered under Title VII, he said 29 Ohio cities now have LGB or LGBT anti-discrimination ordinances, including Akron, Canton, Cleveland, Cleveland Heights, Cincinnati and Columbus.

“Most large- to medium-size employers in Ohio include personnel policies that prohibit discrimination on the basis of sexual orientation,” said Lillard.


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