On March 7, 2018, the United States Sixth Circuit Court of Appeals held that discriminating against an employee based on their transgender or transitioning status is a violation of Title VII. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 U.S. App. LEXIS 5720 (6th Cir. 2018).

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In recent years, there has been a stream of litigation debating whether or not the “because of sex” language in Title VII applies to discrimination based on an individual’s sexual orientation or transgender status.

The former employee was terminated by the funeral home after informing the owner that she planned to transition from a male to a female and would be representing herself as a woman while at work. The EEOC subsequently brought suit, alleging that the funeral home violated Title VII by engaging in unlawful discrimination on the basis of the employee’s transitioning status.

As to the first claim, the court held that the Funeral Home violated Title VII by engaging in discrimination on the basis of sex. The court reasoned that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” under Title VII. The court found that the funeral home was engaging in sex-based discrimination because the plaintiff was terminated solely because she no longer wanted to be a man and wanted to dress like a woman. The funeral home could not establish a non-discriminatory reason for the termination.

The funeral home attempted to raise the defense that Title VII should not be enforced against the funeral home in this instance as it is an “unjustified substantial burden” on the owner’s religious beliefs in violation of the Religious Freedom Restoration Act (RFRA). The court rejected this defense, reasoning that the owner is not expressing support for the decision to transition by continuing to employ the Plaintiff. The court further held that even if the Defendant was able to demonstrate this burden, the EEOC has a compelling interest in eliminating workplace discrimination.

Attorneys at FHKAD routinely advise and defend employers and will keep employers updated on the ever-changing court interpretations of Title VII. For more information, contact Marc Fishel at (614) 221-1216 or mfishel@fishelhass.com.