Transgendered employees are now protected from discrimination pursuant to Title VII, a federal law prohibiting discrimination against employees. The U.S. Court of Appeals for the 6th Circuit, which covers Ohio, issued this ruling on March 6, 2018. Joining prior rulings from the Equal Employment Opportunity Commission and from federal courts across the United States, this decision goes a long way to protect the rights of lesbian, gay, transgender, and bisexual workers.

EEOC v. R.G. & G.R. Harris Funeral Homes

The case involves a former funeral director in Michigan who got fired two weeks after informing her supervisor that she intended to start presenting as a woman at work, as she transitioned from male to female. At the time of her termination, the plaintiff had worked for the family-owned company for nearly six years. Throughout that period, she dressed and presented herself as a man in accordance with her sex at birth.

In the course of investigating the plaintiff’s sex-based wrongful termination claim, the EEOC discovered that the company was paying for male funeral directors’ work clothes while requiring female funeral directors to pay for their own clothes. This mattered because directors had to comply with a strict dress code. The disparate treatment of male and female employees alone would have given the fired plaintiff grounds for a discrimination lawsuit.

At trial in federal district court, the funeral home owner argued that he could not be held responsible for discriminating against the plaintiff because his strongly-held religious beliefs prevented him from employing transgender individuals. The lower court found this defense based on the Religious Freedom Restoration Act credible and dismissed the plaintiff’s case.

The EEOC appealed on the plaintiff’s behalf in late 2016, and the American Civil Liberties Union of Michigan joined the appeal in early 2017. The private civil liberties group argued that its intervention was necessary because the leaders of the U.S. Department of Labor and U.S. Department of Justice who were appointed after the election of Donald Trump have attempted to curtail LGBT rights in numerous ways.

After reviewing all the facts, the 6th Circuit completely reversed the district court’s decision and ordered the lower court to retry the case while recognizing the following:

(1) The Funeral Home engaged in unlawful discrimination against [the plaintiff] on the basis of her sex; (2) the Funeral Home has not established that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden [the owner’s] religious exercise, and therefore the Funeral Home is not entitled to a defense under RFRA; (3) even if [the owner’s] religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against [the plaintiff]; and (4) the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that [the plaintiff] submitted to the EEOC.

A Significant Extension of Anti-Discrimination Protections

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against job applicants and employees based on race, national origin, religion, age (over 40), and sex. Courts and the agencies that enforce employment rights have recognized since the mid-1980s that the protected category of sex includes gender, or whether person presents him or herself as male or female.

The question of whether the prohibition on sex-based discrimination extends to discrimination against individuals who are homosexual, bisexual, or transgendered has received many answers—mostly negative. Starting in 2012, transgender plaintiffs have won a growing number of Title VII cases. Most of those decisions related to personal acts of discrimination such as refusing to use the transitioned person’s new name. What EEOC v. R.G. & G.R. Harris Funeral Homes adds, significantly, is a bar to claiming religious objections to hiring and employing transgender individuals.  It is also the first time the 6th Circuit has recognized that Title VII’s protections extend to transgendered plaintiffs.

As Ohio LGBTQ rights attorneys, we applaud the 6th Circuit for recognizing both that transgender men and women must be protected from wrongful termination and that a self-proclaimed religious belief cannot excuse a discriminatory employment action. While the ruling only applies to Kentucky, Michigan, Ohio, and Tennessee for the time being, it sets an excellent example of how other federal courts should rule. Additionally, several other courts have followed suit and decided cases that also extend protection to transgendered individuals.  No one should lose a job or be denied employment opportunities just because of who they are.

At The Friedmann Firm, we welcome all questions about Title VII protections, and we will work with employers to ensure compliance with employment laws. If you believe you have been denied a job or gotten fired based on your sex, gender, or sexual orientation, call us at 614.610.9755 to request a free, confidential consultation. You can also schedule an appointment online by completing this contact form.