NASHVILLE — A recent federal appeals court ruling stands as another example of judges explicitly expanding the scope of anti-discrimination laws to protect the employment rights of people who identify as gay, lesbian and non-binary gender, according to an attorney whose practice focuses on labor and employment matters.

In the case of EEOC v. R.G. & G.R. Harris Funeral Homes, the U.S. Sixth Circuit Court of Appeals in Cincinnati granted a win to the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of Aimee Stephens, a six-year male funeral director who was terminated from the position once it was disclosed Stephens was undergoing a sex reassignment surgery.

Raquel Martin
Raquel Martin | Bradley Arant Boult Cummings

Though the EEOC sued the funeral home for violating Title VII of the Civil Rights Act, funeral home owner Thomas Rost countered that Stephens' lawsuit violated the Religious Freedom Restoration Act (RFRA) since “sex was an immutable God-given gift,” and sex reassignment was against his beliefs.

However, the Sixth Circuit saw it differently for several reasons, Martin said, as the court found the funeral home’s decision to fire Stephens was based on improper sex stereotyping in violation of Title VII and did not qualify for the so-called "ministerial exception," a provision in the Civil Rights Act which exempts certain religious employers from certain anti-discrimination provisions.

“The ministerial exception to Title VII did not bar the EEOC’s claims of sex/gender discrimination,” Martin said.

She said the funeral home also admitted that it was not a religious organization, and true religious institutions likely have less to worry about because the ministerial exception to Title VII precludes application of employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers.

“If an employer can prove that [it] is a religious institution with clear religious characteristics and employs ministerial employees, the ministerial exception should apply,” Martin said.

The Sixth Circuit also ruled that requiring the funeral home to comply with Title VII did not substantially burden its religious practice of operating funeral homes, precluding the RFRA defense to Title VII claims, Martin said.

She added that requiring the funeral home to comply with Title VII satisfied the EEOC’s compelling interest in eliminating workplace discrimination and  demanding the funeral home to comply with Title VII was the least restrictive means of furthering the EEOC’s compelling interest in eliminating workplace discrimination.

The attorney said that unlike other federal appellate court decisions expanding Title VII protections to lesbians and gays, sexual orientation was not an issue in this case.

“The Sixth Circuit’s opinion was specific to transgender individuals and only focused on gender stereotyping and gender identity,” Martin said, adding that in 2004, the Sixth Circuit became the first appellate court to expressly expand Title VII protections to transgender individuals in Smith v. City of Salem.

“However, in 2000, the First and Ninth Circuits cited Title VII case law when they held that transgender plaintiffs stated claims of sex discrimination under the Equal Credit Opportunity Act and Gender Motivated Violence Act, respectively,” Martin explained.

Martin said the case warns employers that there is no guarantee that their religious beliefs will be a sufficient defense in litigation involving sex discrimination under Title VII.

“However, just as with any other case, the facts matter,” Martin said. “The Sixth Circuit’s rejection of the RFRA defense in this particular case does not necessarily mean that other circuits will follow suit or that the Sixth Circuit will make a similar ruling against another employer that uses this defense. Each case must be assessed on its own merits.”

The attorney said a number of federal courts appear to agree that employment discrimination based on transgender status is sex-stereotyping and violates Title VII based on the ruling established in Price Waterhouse v. Hopkins.

“Because there is yet to be a circuit split regarding the protection of the rights transgender individuals under Title VII, questions about this particular issue are unlikely to land before the Supreme Court any time soon,” Martin said.

Homosexual rights are on the forefront of Supreme Court cases, according to the attorney, adding that the highest court recently declined hearing a case, docketed as Evans v. Georgia Regional Hospital, about whether federal workplace protections on sex discrimination extended to sexual orientation, despite the existence of a circuit split on this issue.

“With circuit courts on opposite ends of the spectrum, the Supreme Court can only delay ruling on whether sexual orientation status is protected under Title VII for so long,” Martin said.

Martin said she would advise her clients to remain cognizant of their responsibility to prevent and address any form of sex discrimination, whether it involves sexual harassment, sex or gender stereotypes, gender identity and/or disparate treatment on the basis of sex.

“Properly train employees and supervisors on how to communicate, interact with and/or discipline one another in ways that avoid hostile, offensive or discriminatory conduct,” Martin said. “Ensure that any adverse employment action is supported by a legitimate, non-discriminatory reason, preferably one that is performance-related or involves the violation a known employment policy or procedure.”

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