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Sixth Circuit Holds That Title VII Protections Extend to Transgender or Transitioning Individuals

In an opinion issued last month, the United States Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) held that the Equal Employment Opportunity Commission (EEOC) was permitted to pursue a Title VII claim on the ground that an employer discriminated against an employee on the basis of the employee’s transgender and transitioning status. The case is captioned Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc.

The plaintiff in the case, Aimee Stephens, worked for the defendant funeral home for five years when she informed her employer that she was transitioning and was going to start presenting as a woman at work. The funeral home fired her because, according to her former supervisor’s testimony, Ms. Stephens was “no longer going to represent himself as a man” and “wanted to dress as a woman.”

On behalf of Ms. Stephens, the EEOC filed a complaint against the funeral home for discrimination in violation of Title VII, which is a federal law generally prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. The district court granted summary judgment in favor of the funeral home, on two grounds: (1) because, according to the district court, transgender status is not a protected class under Title VII, and (2) because the Religious Freedom Restoration Act (RFRA) permitted the funeral home’s owner to exercise his sincerely held religious beliefs by not employing Ms. Stephens.

On appeal, the Sixth Circuit held that, contrary to the district court’s opinion, Ms. Stephens’ transgender or transitioning status is protected by Title VII because employment discrimination based those statuses is no different than discrimination based on non-conformity with stereotypical gender norms, which is an established protected status under existing Supreme Court precedent in the case of Price Waterhouse v. Hopkins1. The Sixth Circuit rejected the funeral home’s RFRA-related arguments. The court held that, even assuming the funeral home’s owner’s religious exercise was substantially burdened, “requiring the Funeral Home to comply with Title VII constitutes the least restrictive means of furthering the government’s compelling interest in eradicating discrimination against Stephens on the basis of sex.”

The Sixth Circuit’s holding that Title VII protects transgender and transitioning individuals follows last year’s opinions from both the Second Circuit (covering Connecticut, New York, and Vermont), and Seventh Circuit (covering Illinois, Indiana, and Wisconsin) holding that sexual orientation is a protected status under Title VII. The Eleventh Circuit (covering Alabama, Florida, and Georgia), however, issued a contrary opinion last year. Accordingly, circuit courts are split over whether Title VII prohibits discrimination on the basis of an individual’s sexual orientation or status as transgender or transitioning. As this area of the law is not settled, CCLB will continue monitoring such legal developments and update this alert as appropriate..

The attorneys at CCLB represent clients of all types and sizes in connection with employment-related matters, including those brought under Title VII and similar employment discrimination statutes. For any questions, or if we can be of any assistance with such a matter, please contact us at (404) 262-6505 or sgrubman@cclblaw.com.

1. 490 U.S. 228 (1989).