If you decide to come out at work, can your employer fire you for being transgender? Does it matter if your boss is a Christian? The Sixth Circuit Court says no and no. A religious objection doesn’t overrule transgender discrimination protections under Title VII.

In this blog post I will review the Sixth Circuit Court of Appeals decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. I will discuss how Title VII protects against gender stereotyping and other forms of transgender discrimination. I will also address when and how a sincerely held religious objection by an employer can affect employee rights.

Funeral Director Fired for Coming Out as Transgender

Aimee Stephens was born Anthony Stephens, a biological male. Before she came out as transgender, Aimee was employed as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a trio of funeral homes owned and operated by Thomas Rost. When Aimee decided to transition, she sent a letter to Rost saying that when she returned from a planned vacation she would be representing herself and dressing as a woman at work. She promised to abide by the company’s sex-specific dress code, which required men to wear a suit and tie and women to wear skirts and business jackets.

But Aimee was never given a chance to do so. She was fired just before going on vacation. Rost, a Christian for over sixty-five years, fired her. Rost believes “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit on of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or “wear the uniform for female funeral directors while at work.” Rost offered Aimee a severance agreementif she “agreed not to say or do anything”, but Aimee declined, believing Rost’s behavior was illegal transgender discrimination.

Title VII and Transgender Discrimination

Title VII of the Civil Rights Act protects workers against discrimination based on a person’s race, color, religion, sex, or national origin. In most cases, an employer’s illegal motive must be shown through patterns of behavior. But Aimee was able to present direct evidence of discriminatory intent. Rost made an express statement that the reason she was terminated was because she intended to present as a woman at work.

The U.S. Supreme Court, as well as several lower and state courts, have said that transgender discrimination is illegal sex discrimination under Title VII. Employers are not allowed to rely on sex stereotypes when making hiring, firing, promotion, or other employment decisions. Many past cases were based on ways transgender men and women’s conduct does not conform to traditional gender norms. However, in this case, the Sixth Circuit Court of Appeals said coming out was enough. The court ruled:

“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The court said Title VII means “gender must be irrelevant to employment decisions.” Some other courts have allowed sex stereotyping as long as requiring conformity does not impede that person’s ability to do his or her work. The 6th Circuit said it would not follow those courts’ lead. Instead, it said, “an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.”

While Aimee intended to present as female at work, the 6th Circuit said even if the company had a gender-neutral dress code she could still be the target of illegal transgender discrimination. The opinion called it “analytically impossible” for a termination based on a person’s transgender status not to be motivated, at least partially, by the employee’s sex.

An Employer’s Religious Objection Doesn’t Overrule Title VII

EEOC v R.G. & G.R. Harris Funeral Homes is also important because it says employers can’t avoid Title VII’s transgender discrimination protections based on the federal Religious Freedom Restoration Act (RFRA). The RFRA says the government cannot enforce a religiously neutral law in a way that “substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.” That means the government, in this case the Equal Employment Opportunity Commission (EEOC), can’t force someone to do something against his or her religion unless it is the least harmful way it can protect a core government interest.

Rost was a Christian who felt “that God has called him to serve grieving people” and “that his purpose in life is to minister to the grieving.” However, the Funeral Home he owned and operated:

• Was not affiliated with a church
• Does not include a religious purpose in its articles of incorporation
• Does not close for Christian holidays
• Serves clients of all faiths
• Hires employees of any faith or no faith
• Does not endorse employees’ beliefs or non-employment-related activities
• Does not display religious icons
• Allows employees to wear Jewish head coverings during Jewish funeral services

The first question for the court was whether Aimee was a “ministerial employee” of a religious institution. Clergy and other ministerial employees are protected by the RFRA because their work deals with “internal church discipline, faith, and organization”. Because the Funeral Home wasn’t a religious organization, its funeral directors could not be considered ministers under the RFRA.

The RFRA can protect private employers from claims by the EEOC as well, but only if doing so would “substantially burden a sincere religious exercise”. If Aimee had filed her gender discrimination lawsuit privately, the RFRA would not apply at all, but because the EEOC was involved, the court had to consider whether Rost’s religious objection overruled Aimee’s Title VII transgender discrimination protections.

Even with the EEOC involved, the court said enforcing Title VII’s protections against transgender discrimination did not force the Funeral Home to violate Rost’s faith. Allowing an employee to exercise a different understanding of sex and gender would not substantially burden his professed calling to serve mourners. Rost said his customers would be distracted by the presence of transgender employee, but the court said,

“[W]e hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. . . . we refuse to treat discriminatory policies as essential to Rost’s business — or, by association, his religious exercise.”

The court said tolerating an employee’s understanding of her sex and gender identity is not the same as supporting it, so the RFRA does not overrule Title VII’s transgender discrimination protections. The EEOC has a compelling interest in protecting employees from discrimination at work, and enforcing Title VII is the least restrictive way to do it.

EEOC v R.G. & G.R. Harris Funeral Homes is a powerful tool in the fight against transgender discrimination. It says you can’t be fired for coming out, and your employer’s religious objection can’t overrule transgender discrimination protections. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to make these cases work for you. If you face transgender discrimination at work or are afraid of coming out, contact Eisenberg & Baum, LLP, today for a free consultation.