June 18, 2018

June 15, 2018

Subscribe to Latest Legal News and Analysis

Sixth Circuit Finds Title VII Covers Discrimination Based on Transgender Status

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex.

In reaching its decision, the court concluded that “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.” As the court explained, “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  Finding that Stephens would not have been fired if she had been a woman who sought to comply with the women’s dress code, the court determined that Stephens’s sex impermissibly affected the termination decision.

Harris Funeral Homes attempted to defend its termination decision under the Religious Freedom Restoration Act (“RFRA”), but the majority rejected this argument: “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.”

In addition to providing Title VII coverage to transgender and gender nonconforming individuals, the Sixth Circuit’s decision marks another victory for the EEOC, whose position was similarly adopted less than two weeks ago by the Second Circuit in Zarda v. Altitude ExpressIn that case, the Second Circuit held that discrimination on the basis of sexual orientation is discrimination based on sex and prohibited by Title VII.  As federal courts begin to reexamine earlier rulings that deny coverage to LGBT employees, employers are advised to conform their policies to EEOC guidance prohibiting discrimination based on gender identity or expression.

©2018 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

202-861-1863
Law Clerk

AMANDA M. GOMEZ* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She will be focusing her practice on wage and hour issues and the preparation of employment policies and procedures as well as employee handbooks and manuals.

Ms. Gomez received her J.D. from Harvard Law School, where she was the Executive Submissions Editor of the Harvard Journal of Law & Gender. While attending Harvard Law, Ms. Gomez served as a Legal Intern at an organization that provides direct legal representation to asylum seekers, detainees, undocumented immigrants, and other individuals who are at an increased risk of deportation.

*Application pending in New York.

212-351-4711