In the past two weeks, we saw two major decisions in the area of LGBTQ rights in the workplace.

First, the Second Circuit in New York held that Title VII does prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018). In Zarda, the New York court overturned past precedent and held that the late Donald Zarda, a skydiving instructor who claimed that he was fired because he was gay, had a viable claim of gender discrimination under Title VII.

Second, the Sixth Circuit Court of Appeals reversed a district court’s decision on EEOC v. R.G. &. G.R. Harris Funeral, rejecting the notion that religious beliefs offer an excuse or reason to discriminate. This case took a sharp turn last week when the court held that the Harris Funeral Home had violated Title VII when it terminated Aimee Stephens, a transgender female employee, because she wanted to wear a skirt to work. No. 16-2424 (6th Cir. March 7, 2018). Ms. Stephens transitioned from male to female and the owner of the home (Thomas Rost) claimed that it violated his religious beliefs to allow plaintiff, a biological male, to wear a skirt to work. Ms. Stephens was ultimately fired over this issue. The District Court agreed with Mr. Rost citing the Religious Freedom Restoration Act (RFRA), which entered final judgment on all counts in the Funeral Home’s favor in August 2016.

On appeal, the Sixth Circuit found that Mr. Rost’s Christian beliefs did not override the employee’s right to express her gender. Thus, even considering the employer’s rights under the RFRA, Mr. Rost did not have the right to dictate his employee’s attire. In other words, Ms. Stephens had a right to wear a skirt to work and therefore, was unlawfully terminated.

Significantly, the Sixth Circuit held that “transgender discrimination is based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations,” therefore, “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 funeral home owner claimed that if Ms. Stephens were allowed to wear a skirt to work, it would “create distractions” for his customers and may even push him to leave the industry. The court did not accept these arguments as supporting his claim of a “substantial burden,” and instead held that accommodating the plaintiff’s desire to wear a skirt to work did not “substantially” burden the owner’s religious beliefs.

Further, the Harris court explained that the “RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden [owner Thomas] 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 also noted “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” The court also found that “tolerating” her expression of gender identity was not the same as “supporting” it.

This case began well before President Trump came into office. However, U.S. Attorney General Jeff Sessions has issued a memo asserting transgender people are not covered under Title VII. That memo clearly did not influence the Sixth Circuit’s decision.

WHAT DOES THIS MEAN FOR THE FUTURE?

The Zarda decision, coming out of the well-respected Second Circuit, sends a strong signal that federal law should prohibit discrimination based on sexual orientation.

The Harris decision rejects the notion that religious beliefs offer an excuse or reason to discriminate. It also makes clear that employers cannot use the preference or prejudice of other employees or customers as an excuse to discriminate against a transgender person.

While many state and local laws already prohibit discrimination against gay and transgender employees, these two recent decisions clearly indicate where federal law is headed. The rights of gay and transgender employees are still an issue to be reckoned with and, clearly in the eyes of courts, they are a protected class under federal law.

There is a chance that either or both cases may land in D.C. for review by the Supreme Court. We will be watching closely.