Following the leads of the U.S. 2^nd Circuit and 7^th Circuit Court of Appeals, the 6^th Circuit Court of Appeals (which includes Michigan) continues the expansion of the definition of “sex” under Title VII and recognizes that discrimination on the basis of transgender and transitioning status or gender identity is discrimination on the basis of sex. 

In EEOC v. R.G. & G.R. Harris Funeral Homes Inc., No: 16-2424 (6^th Circuit Court of Appeals, 3/7/18),  Aimee Stephens, a transgender woman who was “assigned male at birth,” joined the funeral home as an apprentice on October 1, 2007 and served as a Funeral Director/Embalmer at the funeral home from April 2008 until August 2013.  During the course of her employment at the funeral home, Stephens presented as a man and used her then-legal name, William Anthony Beasley Stephens.

On July 31, 2013, Stephens provided Rost with a letter stating that she has struggled with “a gender identity disorder” her “entire life,” and informing Rost that she has “decided to become the person that [her] mind already is.” After presenting the letter to Rost, Stephens postponed her vacation and continued to work for the next two weeks. Then, just before Stephens left for her intended vacation, Rost fired her.

Rost testified that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”  Rost asserts that he “sincerely believe[s] that 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 one of [the funeral home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the funeral home’s] male funeral directors to wear the uniform for female funeral directors while at work.  Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

Stephens filed a charge with the EEOC, and after investigation, the EEOC issued a letter of determination on June 5, 2014, in which the EEOC stated that there was reasonable cause to believe that the funeral home “discharged [Stephens] due to her sex and gender identity, female, in violation of Title VII” and “discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII.”  Conciliation did not work out, and the EEOC filed suit.

The trial court found for the funeral home at summary judgement.  Although the court found that there was “direct evidence to support a claim of employment discrimination” against Stephens, the court concluded that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII against the funeral home. The court found that by doing so, it would substantially burden Rost and the funeral home’s religious exercise.  The court also found that the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the funeral home.”

On appeal, the 6^th Circuit, in an unanimous opinion, found that the funeral home had discriminated against Stephens on the basis of sexual stereotyping agreeing with the trial court.  Moreover, the 6^th Circuit stated specifically that discrimination on the basis of transgender and transitioning status or gender identity is discrimination on the basis of sex.   

Next, the 6^th Circuit overruled the trial court on the RFRA defense to the discrimination claim.  First, the 6^th Circuit did not recognize the funeral home as a religious institution.  The 6^th Circuit ruled previously that the ministerial exception applies only to religious institutions and since the funeral was not, Stephens was not a ministerial employee. 

Second, the 6^th Circuit found that the RFRA protections did not apply to the funeral home.  The question before the court was whether the funeral home has identified any way in which continuing to employ Stephens would substantially burden its ability to serve mourners. The initial burden raised was that allowing a funeral director to wear the uniform for members of the opposite sex would often create distractions for the deceased’s loved ones and thereby hinder their healing process.  The 6^th Circuit found that this burden was premised on unsupported and presumed responses of customers.  It then held that as a matter of law a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.

The other burden raised was that by “forcing [the funeral home] to violate Rost’s faith . . . would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” The 6^th Circuit held that simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA.  It then stated that he fact that even though “Rost sincerely believes that he is being compelled to make such an endorsement does not make it so.”

Unless the case is appealed and overturned by the Supreme Court, employers in Michigan need to ensure against employee discrimination either because of their failure to conform to sex stereotypes or their transgender and transitioning status.