Is Firing a Transgender Employee Discrimination Based on Sex?

Posted on Sunday, October 6th, 2019.

The Supreme Court Will Soon Decide Transgender Rights in Major Employment Discrimination Case:  R.G. & G.R. Harris Funeral Homes v. EEOC

by Paul Salvatoriello, Esq.

October 2019

One of the first cases to be heard before the United States Supreme Court this term is also likely to be one of the most significant cases of the term.  The case is titled R.G. & G.R. Harris Funeral Homes v. EEOC, and it will answer the question of whether Title VII of the Civil Rights Act of 1964 protects transgender people from workplace discrimination.  Along with two other cases of workplace discrimination based on sexual orientation, this case will put the Court firmly in the center of a high-profile debate on LGBTQ issues in the workplace.

This article will take you through the facts of the case, the arguments of the parties, and the context in which the case will be decided.

If, after reading this article, you have questions, or if your organization needs to create or update its own workplace discrimination policies, we welcome you to contact us at Trimboli & Prusinowski, LLC by clicking here, or calling 973-660-1095.  We are employment attorneys who represent businesses in all aspects of employment law, from drafting workplace policies to representing your company in court.

Long-Time Employee is Fired After Choosing to Live as a Woman

For six years, Aimee Stephens was a funeral director and embalmer at R.G. & G.R. Harris Funeral Homes in Michigan.  When she began working at the funeral home, she went by the name Anthony Stephens and dressed in men’s clothing.  Ms. Stephens, however, ultimately decided that she could no longer live as a man after going through a long internal struggle about her gender identity.

As a consequence, she told management at R.G. & G.R. Harris Funeral Homes that she was going to live and work as a woman.  She also indicated that she would eventually undergo reassignment surgery after one year.  In response, the funeral home fired her.  The devout Christian owner of the funeral home, Thomas Rost, believed that it would be “violating God’s commands” to let one of his funeral directors “deny their sex” while in his employ.

Stephens turned to the Equal Employment Opportunity Commission (EEOC), asserting that she was the victim of sex discrimination.  The EEOC agreed and brought suit against the funeral home, stating that Stephens was fired in violation of Title VII of the Civil Rights Act of 1964, which makes it an “unlawful employment practice” for an employer to fire someone “because of sex.”

The Lower Courts Tee-Up the Issue for the Supreme Court

The district court dismissed the EEOC’s lawsuit, holding that Title VII does not protect transgender employees.  The Sixth Circuit Court of Appeals, however, reversed the district court’s decision in favor of Stephens and the EEOC.

Specifically, the Sixth Circuit found that Stephens can assert a claim of “sex stereotyping” based on Price Waterhouse v. Hopkins, a 1989 Supreme Court case.  Further, and most importantly, the Sixth Circuit held that Stephens can also assert of claim of sex discrimination because Title VII protects transgender individuals.  Notably, the court stated, “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.”

Following the Sixth Circuit’s decision, the funeral home petitioned the Supreme Court to hear the case.  The Court agreed, framing the issue as follows: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).”

The Arguments of the Parties

The funeral home’s argument before the Supreme Court is that transgender discrimination is not the same as discrimination based on “sex.”  In short, the funeral home maintains that if Congress wants to protect transgender individuals under Title VII, then it must include “transgender status” in the list of protected classes under the law.

With regard to the EEOC’s position, this case is rather unusual.  The EEOC, under the Obama administration, initiated the lawsuit on behalf of Stephens.  However, under the current administration, the EEOC is taking the opposite position, against Stephens.  The EEOC argues that Title VII does not currently prohibit discrimination based on sexual orientation and, therefore, should not prohibit discrimination against transgender persons.

By contrast, Stephens argues that the central promise of Title VII is that an employee be judged based on merit, not on his or her sex.  Here, the only reason for her termination was because she is transgender.  That necessarily is discrimination based on “sex” because the funeral home would not have fired her if her biological sex was female.  In other words, the idea of her “sex” cannot be separated from the decision to fire her.

New Justices, New Position on LGBTQ Issues?

The Court has not ventured into cases involving LGBTQ issues since Justice Anthony Kennedy retired.  Justice Kennedy, of course, is well known for writing the 2015 decision legalizing gay marriage in Obergefell v. Hodges.  Given that the new Justices Gorsuch and Kavanaugh are known to have ideologies more conservative than Justice Kennedy, it is unclear whether the Court will be as open to gay and transgender rights as it has been in the past.  Oral arguments will be held on October 8.

Trimboli & Prusinowski, Providing Experienced Employment Advice for Your Business

 If you need employment advice and representation for your organization, then contact the experienced attorneys at Trimboli & Prusinowski, LLC.  Our mission is to minimize employment issues in your organization so you can focus on your core business.  Schedule a consultation by clicking here, or calling us at 973-660-1095.

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