Why it matters
Siding with the Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Sixth Circuit ruled that a Michigan funeral home was not protected from liability under Title VII for discriminating against a transgender employee. The agency filed suit in 2014, claiming that R.G. & G.R. Harris Funeral Homes violated the statute when it terminated Aimee Stephens two weeks after she announced her plans to transition from male to female, with the company’s owner informing her that what she was “proposing to do” was unacceptable. The funeral home argued that the Religious Freedom Restoration Act shielded it from liability, but the federal appellate panel disagreed, reversing summary judgment in favor of the employer. “Tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it,” the court wrote, and compliance with federal law does not equate with endorsing Stephens’s views. “The fact that [the owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.”
Born biologically male, Aimee Stephens lived and worked as a funeral director at R.G. & G.R. Harris Funeral Homes while still living and presenting as a man. After working for the company for approximately five years, Stephens gave owner Thomas Rost a letter explaining that she has struggled with “a gender identity disorder” her “entire life.” She informed Rost that she intended to have sex reassignment surgery, and as a first step, would live and work as a woman for a period of one year.
Rost terminated Stephens, later testifying that he fired her because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” Stephens filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC), and the agency filed suit.
The EEOC charged the funeral home with violating Title VII by terminating Stephens’s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes and by administering a discriminatory clothing allowance policy.
In its defense, the employer pointed to the Religious Freedom Restoration Act (RFRA), arguing that it precluded the agency from enforcing the statute against the funeral home because it would substantially burden Rost and the company’s religious exercise. God has called him to minister to grieving people, Rost said, and he believes that he would be violating God’s commandments to permit a funeral director to deny his God-given sex.
On cross-motions for summary judgment, a district court judge ruled in favor of the employer. The EEOC—with Stephens having intervened—appealed. The U.S. Court of Appeals for the Sixth Circuit reversed, granting summary judgment to the EEOC on the unlawful termination claim and remanding the claim on the discriminatory clothing allowance.
“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female,” the court wrote.
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 panel said, citing the recent Seventh Circuit decision in Hively v. Ivy Tech Community College of Indiana for support.
Would Stephens have been fired if she had been a woman who sought to comply with the women’s dress code at the funeral home? “The answer quite obviously is no,” the court said. “This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.”
Further, “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping,” the panel wrote. “[A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
Prior Sixth Circuit precedent holding that Title VII does not forbid sexual orientation discrimination was distinguished by the panel as a different question than discrimination against a transgender individual.
As for defenses to the employer’s liability, the court rejected the application of Title VII’s “ministerial exception” to the employer as well as the funeral home’s use of the RFRA.
The funeral home did not qualify for the “ministerial exception” because it is not affiliated with any church, its articles of incorporation do not avow any religious purpose, its employees are not required to hold any particular religious views, and it employs and serves individuals of all religions, the panel explained. Nor was Stephens a ministerial employee. Her title (“funeral director”) conveyed a purely secular function, the record did not reflect she had any religious training, she did not perform important religious functions and she was not an ambassador of any faith.
Turning to the RFRA, the statute prohibits the government from enforcing a religiously neutral law against an individual if that law substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.
But even taking Rost’s assertions regarding his religious beliefs as sincere, the panel found that continuing to employ Stephens would not substantially burden the funeral home’s ability to serve mourners. The employer’s position that permitting Stephens to dress as a female would “create distractions for the deceased’s loved ones and thereby hinder their healing process” was “premised on presumed biases,” the court wrote. “[W]e hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”
In addition, allowing Stephens to wear attire that reflects her conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden pursuant to the RFRA, the panel said. “[A]s a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it,” the court said. “[B]are compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.”
Finally, the Sixth Circuit concluded that the EEOC has a compelling interest in ensuring that the funeral home does not discriminate against its employees on the basis of their sex and that the agency’s efforts are the least restrictive way to further this interest. “Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement,” the court said.
“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 panel wrote. “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.”
To read the opinion in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., click here.