On March 7, 2018, the Sixth Circuit issued a ruling of first impression, holding that the Religious Freedom Restoration Act (“RFRA”) did not exempt an employer from liability for violating Title VII of the 1964 Civil Rights Act (“Title VII”) when it fired an employee transitioning from male to female.
In E.E.O.C. v. R.G. &. G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 WL 1177669 (6th Cir. Mar. 7, 2018), the EEOC filed suit against a funeral home, alleging that the owner violated Title VII when he terminated the funeral director after she notified him that she was transitioning from male to female and would begin to present as a woman at work. The owner asserted that the termination was protected under the RFRA, which generally prohibits the government from substantially burdening a person’s religious exercise unless the government has a compelling interest and uses the least restrictive means. Specifically, the owner argued that operating the funeral home was an exercise of his faith, which called him to serve grieving people. He claimed that requiring him to authorize a transitioning employee to wear female attire would be a substantial burden on his religious exercise. The district court granted summary judgment in favor of the funeral home, and noted that a gender neutral dress code was a less restrictive alternative to protect the transitioning employee from gender stereotypes.
On appeal, the Sixth Circuit primarily relied on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) in holding that “[d]iscrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.” The Court reasoned 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.”
Additionally, the Sixth Circuit rejected the Funeral Home’s RFRA defense, holding that “as a matter of law, tolerating [the employee’s] understanding of her sex and gender identity is not tantamount to supporting it.” Further, the Court held that, “as a matter of law, a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”
The Sixth Circuit also rejected the argument that a gender neutral dress code was a less restrictive alternative in this case, noting that such a policy would not address the funeral home’s unlawful sex stereotyping, such as how a certain sex should appear, behave, or identify.
This case represents a continuing trend of broadly construing federal employment law to include protections for LGBTQ individuals. As we previously reported, the Second and Seventh Circuits have recently held that Title VII protects against sexual orientation discrimination. These cases demonstrate that it is important for employers to review their policies and procedures with experienced counsel to reduce risk in this quickly changing area of law.