March 12, 2018 | Category: Compliance, Discrimination, Employment, News

Earlier this month, the Sixth Circuit Court of Appeals—which covers Ohio, Kentucky, Tennessee, and Michigan—ruled that employers cannot discriminate against transgender and transitioning employees. Doing so would violate Title VII of the Civil Rights Act of 1964. This case, Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., is the second ruling from a federal court in recent weeks in which LGBT issues in employment are addressed. The tides are changing and employers’ attitudes about LGBT issues will need to change with them.

The Facts – Transitioning from William to Aimee

Aimee Stephens, a transgender woman who was born biologically male, joined R.G. & G. R. Harris Funeral Homes as an apprentice on October 1, 2007, and served as Funeral Director/Embalmer from April 2008 until August 2013. At the time of hiring and throughout her employment, Stephens presented as a man and used her then-legal name, William Anthony Beasley Stephens.

On July 31, 2013, Stephens provided her employer with a letter stating that she had suffered from gender identity for her entire life and had decided to begin living as the person she had always been, which included sex reassignment surgery. The letter stated that upon returning from her vacation in August 2013, Stephens would be returning as her true self, Aimee Stephens, and would dress as a woman in appropriate business attire. Prior to going on vacation, her employer fired her stating that “this is not going to work out,” and offering her a severance agreement if she “agreed not to say anything or do anything.”

As justification for the decision to fire Stephens, R.G. & G. R. Harris Funeral Homes owner, Thomas Rost, stated that he has a sincere belief that the Bible teaches that a person’s sex is an immutable God-given gift and that he would be violating God’s commands if he were to permit his male-born funeral director to wear women’s clothing. Further, he stated that he believes his customers would be unnecessarily distracted and upset by the situation.

Stephens filed a Title VII sex discrimination claim with the Equal Employment Opportunity Commission (EEOC) alleging that she was discriminated against on account of her sex. In her claim, Stephens noted that the only explanation she received from management for her termination was that the public would not be accepting of her transition. The lower court dismissed Stephens claim finding that transgender status is not protected by Title VII and that the Religious Freedom Restoration Act (RFRA) barred the claim because R.G. & G. R. Harris Funeral Homes’ owner sincerely held Christian beliefs. RFRA protects employers if they can demonstrate that complying with a generally applicable law would substantially burden their religious exercise.

Stephens appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit overturned the lower court’s ruling, finding in Stephens’ favor. In its ruling, the Court stated that discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex and therefore a violation of Title VII. The Court went on to say 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.” Further, the Court noted that discrimination against transgender persons implicates Title VII’s prohibition against sex stereotyping—discrimination based on transgender or transitioning status is no different from discrimination based on gender non-conformity, which has long been held to be unlawful under the statute.

The Sixth Circuit Court of Appeals did not accept R.G. & G. R. Harris Funeral Homes’ position that the claim was barred by RFRA. The Court noted that RFRA protects religious exercise, not simply a religious belief. The Court rejected R.G. & G. R. Harris Funeral Homes’ first argument—that it would create a distraction for customers—noting that a customer’s presumed biases cannot be used to establish a substantial burden under RFRA. The Court rejected R.G. & G. R. Harris Funeral Homes’ second argument—it would force the owner to violate his faith—noting that tolerating Stephen’s understanding of her sex and gender identity is not tantamount to supporting it.

What Can Employers Learn From This Case?

First and foremost, Nevada employers are not bound by decisions made by the Sixth Circuit Court of Appeals. Nevada is covered by the Ninth Circuit Court of Appeals. However, Nevada law provides protection for gender identity or expression; it is an unlawful employment practice to discriminate against a person because of his/her sex, sexual orientation, gender identity, or gender expression. Therefore, Nevada employers are ahead of the game and should already have protections in place for transgender or transitioning employees and applicants for employment. Nevertheless, Nevada employers should be proactive to ensure they are in full compliance with the law. Employers should review their policies and procedures, including training, investigations, and hiring methods, to ensure that transgender and transitioning employees and applicants are treated the same as any other protected class.