The U.S. Sixth Circuit Court of Appeals ruled last month that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a transgender woman “on the basis of sex” and also ruled that the supervisor’s belief that gender transition “violates God’s commands” is not a defense to employment discrimination.
The Sixth Circuit, which decides federal cases brought in Kentucky, Tennessee, Michigan and Ohio, reviewed the firing of Aimee Stephens from her job at a funeral home in which she had originally worked as a male in the case of EEOC v. R.G & G.R. Harris Funeral Homes (U.S. 2018)
After she was diagnosed with gender identity disorder, Stephens told her boss, Thomas Rost, that she was planning to transition to female. Her boss fired her. Rost stated during the lawsuit that he terminated Stephens’s employment because “he was no longer going to represent himself as a man” and that a person’s sex is “an immutable God-given fit”.
The Sixth Circuit decided, like the Second and Seventh Circuits (covering New York, Vermont, Connecticut and Illinois, Indiana and Wisconsin, respectively) before it, that a company violates an employee’s civil rights if the employer fires that worker on the basis of sex, including sexual orientation and gender identity.
The funeral home where Stephens worked hoped that its termination of her would be protected by the Religious Freedom Restoration Act and the U.S. Supreme Court’s case of Burwell v. Hobby Lobby (U.S. 2014).
However, almost three decades ago. the U.S. Supreme Court had already rejected the argument that a supervisor’s religious squeamishness was sufficient to overcome the civil rights laws. The United States Supreme Court ruled in Employment Division v. Smith (U.S. 1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote conservative Justice Antonin Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Despite this long-standing Supreme Court precedent, the funeral home argued that the presence of a transgender employee would require Rost to leave his job, because forcing him to work with a transgender person was an infringement of his religious rights and also would “often create distractions for the deceased’s loved ones”.
As to the first point made by the funeral home, Rost was told by the Sixth Circuit that continuing to supervise Stephens and “tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Rost was not required to endorse or help Stephens’s transition. He could remain neutral.
Rost was also informed that allowing Stephens to remain employed did not “substantially burden his religious practice”. However, even if it was a substantial burden to Rost’s beliefs, the Sixth Circuit said that preventing employment discrimination is the more compelling requirement under the law and the civil rights law must be enforced. Otherwise, just as Justice Scalia said in 1990, all civil rights laws could be called into question by the preferences of the individual and would become unenforceable.
As to the employer’s second argument, the Sixth Circuit opinion makes it clear that employers cannot escape the requirements of Title VII by relying on the “presumed biases” of their customers. This type of argument also failed back in the 1960s when motel and restaurant owners protested to the Supreme Court that they would lose the business of white customers when the federal government required that all public accommodations allow African-Americans equal access to eat or stay there.
As a Texas employer or supervisor, what should your takeaway from this case be? While the Fifth Circuit, which sits in New Orleans and has jurisdiction over Texas, Louisiana and Mississippi, has not issued a similar opinion yet, it would be extremely unwise for an employer in Texas to take the risk of discriminating against someone based on sexual orientation or gender identity.
The Fifth Circuit has already gotten halfway there by ruling that a plaintiff can state a claim of sex discrimination under Title VII by showing that same-sex harassment was motivated by the harasser’s perception that the plaintiff did not conform to gender stereotypes. A Fifth Circuit ruling that Title VII’s prohibition of discrimination on the basis of sex protects all LGBTQ employees may not be far behind.
As an employment lawyer, I would advise any company that is a perilous business decision to discriminate on the basis of an employee’s LGBTQ status or take any other employment actions that could cause your company to become the test case in the Fifth Circuit, particularly knowing that even your sincerely-held religious beliefs might not help you avoid an expensive lawsuit and judgment against your company.
Ultimately, the Supreme Court will decide this issue. You should just keep your focus as an employer on whether your employee is meeting your job-related and performance-based criteria before you make any firing decisions.