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Legal Updates for Employment Law

June 1, 2018

Sixth Circuit Becomes First Federal Appellate Court to Find Title VII Protects Transgender and Transitioning Individuals in the Workplace

“Does Title VII of the Civil Rights Act of 1964 provide protections to LGBT individuals in the workplace?” This is currently one of the hottest questions in all of employment law today. Just recently, the Sixth Circuit Court of Appeals in R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424 (6th Cir. March 7, 2018) became the latest court to weigh in on this hot-button issue when it held that discrimination based on transgender and transitioning status constitutes an actionable form of sex discrimination under Title VII. The Sixth Circuit’s decision is a noteworthy one as it marks the first federal appellate court decision to explicitly hold that Title VII extends specifically to transgender and transitioning employees.

Aimee Stephens, who was born biologically male, worked as a funeral director at R.G. & G.R. Harris Funeral Homes. For the first six years of employment at the funeral home, Stephens dressed and presented as a male at work. In 2013, Stephens was terminated from the funeral home shortly after she informed the funeral home’s owner, Thomas Rost, that she intended to begin her gender transition and dress as a woman at work. On appeal, the Sixth Circuit reversed the decision of the district court, finding that Stephens had asserted a cognizable claim of sex discrimination under Title VII based on her transgender and transitioning status. In finding in favor of Stephens, the court relied on two independent, primary rationales:

(1) Gender Stereotyping: First, the Sixth Circuit ruled that Stephens was fired because of her failure to conform to sex stereotypes. In doing so, the Sixth Circuit held that transgender discrimination constitutes a form of unlawful discrimination because such discrimination constitutes a form of sex stereotyping, which is prohibited under Title VII.

(2) Transgender Discrimination “Is Necessarily” Discrimination on the Basis of Sex: Second, the court also went a step further, finding that Stephens could alternatively pursue a claim that she was discriminated against on the basis of her transgender and transitioning status, as discrimination on the basis of transgender and transitioning status “is necessarily discrimination on the basis of sex.” Applied to Stephens’s claim, the fact that the funeral home’s decision to terminate her was based at least partially on her desire to change her sex, established that the funeral home’s decision ran afoul of Title VII.

The R.G. & G.R. Harris Funeral Homes decision is noteworthy. It marks the first time a federal court of appeals has explicitly held that transgender discrimination is covered under Title VII, even in the absence of any showing that the employee did not conform to traditional gender stereotypes. The Sixth Circuit’s ruling is also significant because it continues a recent trend of federal appellate court rulings favoring a much more expansive view of the proper scope of “sex discrimination” under Title VII. The R.G. & G.R. Harris Funeral Homes decision comes on the heels of two federal appellate decisions from the Seventh and Second Circuits, Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017) and Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. Feb. 26, 2018), in which both courts held that sexual orientation discrimination constitutes unlawful sex discrimination under Title VII. While the debate is far from settled as to whether Title VII applies to LGBT employees, the R.G. & G.R. Harris Funeral Homes decision further signals a growing consensus among the federal appellate courts that supports an interpretation of “sex” discrimination that is vastly broader in scope as compared to years past, and one which extends to provide protections to sexual minorities in the workplace.

David Oberly is an associate in our Cincinnati office and may be reached at djoberly@mdwcg.com.

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