10 Oct Sixth Circuit Affirms Robust Position on Gender Stereotyping

MASUD LABOR LAW GROUP

By: Brian Boyd

The application of Title VII’s sex stereotyping prohibition has been a major point of controversy in recent years, especially as it relates to transgender employees. This issue becomes especially polarized when the employer bases its reasoning on a sincerely held religious belief.  In EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. 2018), the Sixth Circuit signaled that it was moving forward in a direction that was very friendly to transgender employees alleging gender stereotyping claims, notwithstanding the religious objections of the employer.

Aimee Stephens, a transgender woman, began working at R.G. & G.R. Harris Funeral in 2007 and ultimately served as a Funeral Director/Embalmer. Throughout her employment, Ms. Stephens presented herself as a man and used her then-male legal name. Although operated by an openly Christian individual, the Funeral Home was not affiliated with any church, did not have an express religious purpose or is overtly religious. The Funeral Home maintained a dress code requiring each public-facing male employee to wear a suit and tie and each public-facing female employee to wear a skirt and a business jacket. In July 2013, Stephens provided notice that she had decided to have sex reassignment surgery and would begin dressing as a woman.  In response, the Funeral Home terminated Stephens’ employment on the grounds that she “was no longer going to represent himself as a man” and “wanted to dress as a woman.” The district court dismissed the suit brought on Stephens’ behalf by the Equal Employment Opportunity Commission (EEOC), holding that “transgender status is not a protected trait under Title VII.”

On Appeal to the Sixth Circuit, the Court found that there was little doubt that the Funeral Home had discriminated against Stephens.  The question thus remained whether this type of discrimination fell within the ambit of Title VII.  With this in mind, the Court looked to the seminal United States Supreme Court case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), which held that “Title VII’s proscription of discrimination ‘because of . . . sex’ . . . mean[s] that gender must be irrelevant to employment decisions” and, thus, prohibits discrimination based on sex stereotyping.  The Court interpreted this to mean that, “[u]nder any circumstances, ‘[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”  Consequently, the Court found the Funeral Home’s conduct fell squarely within the ambit of Price Waterhouse since it based its decision to terminate Stephens’ employment solely on her noncompliance with how it perceived she “should appear or behave based on her sex.”

More intriguing, however, is the Courts assessment of Stephens’ discrimination on the basis of transgender/transitioning status claim.  In this regard, the Court first noted 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.”  Thus, according to the Court, such a decision is by definition not gender irrelevant. Moreover, the Court found that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.” This is because determining how a transgender employee should act requires the employer to “impos[e] its stereotypical notion of how sexual organs and gender identify ought to align.”  Consequently, the Court found that a suit could be brought under Title VII on the basis of transgender status and transitioning identity.

The Court then proceeded to reject the Funeral Home’s religious-based defenses. First, the Court found that the Ministerial Exception (which excludes religious institutions from the scope of Title VII) was inapplicable to the Funeral Home because it was not a religious institution (in that it had “virtually no ‘religious characteristics’”) and that Stephens was not a minister.  The Court also rejected the Funeral Home’s Religious Freedom Restoration Act claim on the grounds that the Funeral Home had not demonstrated that there would be a “substantial burden” on its religious beliefs. Significantly, the Court rejected the Funeral Home’s argument that grieving patrons might be upset by seeing a transgendered individual in the Funeral Home. In this regard, it held that: “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” Finally, the Court found that requiring compliance with antidiscrimination laws does not, in and of itself, constitute an endorsement of Stephens’ transition efforts, and thus enforcement of Title VII alone does not burden the Funeral Home’s religious beliefs.

Going forward, employers must understand that the Sixth Circuit has taken an expansive view of transgender discrimination and gender stereotyping in the workplace.  Although the Court did go to great lengths to distinguish this case from one in which it declined to permit a sexual stereotyping claim based on sexual orientation under Title VII, this move signals a move to a more expansive view of gender stereotyping claims in the years to come.  Time will only tell, however, how this will play out going forward, especially as it relates to sexual orientation claims, which the court appeared to leave untouched in its decision.

Please contact the Masud Labor Law Group should you have any questions regarding how gender stereotyping impacts employer’s rights under Title VII.