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RFRA No Defense to EEOC's Title VII Discrimination Claim on Behalf of Transgender Employee: Sixth Circuit
Practical Law Legal Update w-013-5998 (Approx. 5 pages)
RFRA No Defense to EEOC's Title VII Discrimination Claim on Behalf of Transgender Employee: Sixth Circuit
by Practical Law Labor & Employment
| Published on 13 Mar 2018 • USA (National/Federal) |
In Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the US Court of Appeals for the Sixth Circuit held that the Religious Freedom Restoration Act (RFRA) was not a defense to the Equal Employment Opportunity Commission (EEOC) discrimination lawsuit on behalf of a transgender employee under Title VII of the Civil Rights Act of 1964 (Title VII).
On March 7, 2018, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the US Court of Appeals for the Sixth Circuit held that the Religious Freedom Restoration Act (RFRA) was not a defense to the EEOC's Title VII discrimination claim on behalf of a transgender employee. The Sixth Circuit reversed the district court's grant of summary judgment to the employer on claims of unlawful termination and discriminatory clothing allowance, and instead granted summary judgment to the EEOC on the unlawful termination claim. ( (6th Cir. Mar. 7, 2018).)
Background
Aimee Stephens, formerly Anthony Stephens, worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a for-profit corporation whose owner emphasized his priorities of honoring God and serving the purpose of aiding grieving people. The funeral home required male employees to wear suits and females to wear skirts and business jackets. However, the employer provided male employees with free suits to meet the dress code, and (initially) offered female employees no clothing or clothing stipend.
After Stephens informed her employer that she would be transitioning from male to female and dress according to the female dress code, the funeral home terminated her employment. Stephens filed a complaint with the EEOC, which brought a suit charging that the funeral home violated Title VII by:
- Terminating Stephens's employment based on:
- her transgender or transitioning status; and
- her refusal to conform to sex-based stereotypes.
- Administering a discriminatory clothing-allowance policy.
The funeral home argued that:
- Requiring Stephens to comply with a sex-specific dress code that burdened male and female employees equally did not violate Title VII.
- Requiring the funeral home to employ Stephens while dressed as a woman would create an unjustified substantial burden on the owner's sincerely-held religious beliefs, in violation of the RFRA.
- The EEOC could not bring a discriminatory clothing-allowance claim in a complaint arising out of Stephens's original discrimination charge because the funeral home could not reasonably expect this claim to emerge from an investigation into Stephens's termination.
The district court granted summary judgment to the funeral home.
Outcome
The Sixth Circuit:
- Reversed the district court's grant of summary judgment to the funeral home on the unlawful-termination claim.
- Granted summary judgment to the EEOC on the unlawful-termination claim.
- Reversed the district court's grant of summary judgment to the funeral home on the EEOC's clothing-allowance-discrimination claim and remanded the case to district court to consider the merits.
The Sixth Circuit held that:
- The funeral home unlawfully discriminated against Stephens on the basis of her sex.
- The funeral home was not entitled to a RFRA defense because it did not establish that applying Title VII's sex discrimination prohibitions would substantially burden the funeral home's religious exercise.
- The EEOC established that enforcing Title VII was the least restrictive means of furthering the compelling interest in eliminating workplace discrimination.
- The EEOC could bring a discriminatory-clothing-allowance claim because investigating the funeral home's clothing-allowance policy was reasonably expected to grow from Stephens's original sex discrimination charge submitted to the EEOC.
On the termination claim, the Sixth Circuit reasoned that:
- Discrimination based on not conforming with stereotypical gender norms is prohibited under Title VII (Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)). A transgender plaintiff subjected to an adverse employment action after expressing "a more feminine appearance and manner on a regular basis" could file a Title VII employment discrimination suit, since the discrimination occurred because of the victim's sex (Smith, 378 F.3d at 572-74).
- Discrimination on the basis of transgender or transitioning status also violates Title VII because:
- 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 (see Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345 (7th Cir. 2017); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)); and
- discrimination against transgender persons necessarily implicates Title VII's prohibition of sex stereotyping, and discrimination based on transgender status and gender non-conformity cannot be separated (see G.G. v. Gloucester County School Board, 654 F. App’x 606 (4th Cir. 2016); Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016)).
- The funeral home failed to establish any non-discriminatory basis for the termination, as the owner claimed to fire Stephens based not on performance, but because she was going to dress in women's clothing.
- The court rejected the funeral home's defense that it fired Stephens for not abiding by its sex-specific dress code.
In response to the funeral home's RFRA defense, the Sixth Circuit:
- Noted that to assert a viable RFRA defense, a religious claimant must demonstrate that the government action "would substantially burden a sincere religious exercise" (Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006)).
- Held that requiring the owner to comply with Title VII's anti-discrimination requirements did not substantially burden his religious practice.
- Reasoned that:
- as a matter of law, a religious claimant cannot rely on a customer's presumed bias to establish a substantial burden under the RFRA;
- other circuits have held that "it would be totally anomalous ... to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid" (Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971); see Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993));
- the owner was not forced to choose between providing clothes to Stephens or leave the industry because he was not required to provide clothes to any employees;
- the owner's belief that employing Stephens compelled him to violate his religious convictions did not mean that he actually was compelled as a matter of law to violate his religious convictions; the owner can comply with Title VII concerning Stephens's transgender status without endorsing it (see Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 1122, 1141 (11th Cir. 2016); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015)); and
- enforcing Title VII and minimally burdening the funeral home's religious exercise was the least restrictive way for the EEOC to achieve its compelling interest of ensuring that the funeral home eliminated discrimination in its workplace (see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014); Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006)).
Practical Implications
The Sixth Circuit's recognition in this case that Title VII covers transgender employees is not a new legal development. However, it is significant that the court held that the employer was not entitled to a RFRA defense because it had not established that applying the anti-discrimination provisions of Title VII would substantially burden the employer's religious exercise. Employers are not required to personally support transgender employees, but employing a transgender individual in compliance with anti-discrimination law does not prevent an employer from maintaining its own religious convictions and is not a substantial burden. Employers must also remember that they cannot make discriminatory decisions in violation of the law based on customers' presumed biases, unsupported by evidence.