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Oh God: Sixth Circuit Reverses Funeral Home Win Over Transgender Employee

Amiee Stephens worked for a funeral home when she was known as Anthony Stephens. The funeral home is a closely held corporation, owned by a devout Christian.  The funeral home itself, however, is not affiliated with a church and does not claim to have a religious purpose in its articles of incorporation.  It is open every day, including Christian holidays, and it serves clients of all faiths.

The short factual summary:  when Stephens told the owner that she had been struggling with gender identity disorder and intended to start presenting as a woman, she was fired.  An ancillary part of the case involved the fact that male employees at the funeral home who interacted with the public had to wear suits and ties; female employees had to wear skirts and business jackets. The funeral home gave free suits and ties to men; but not until after the EEOC filed its lawsuit here it did the funeral home provide females with any clothing allowance.

Nearly two years ago, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837 (E.D. Mich. 2016) a federal judge held that, in a lawsuit brought by the EEOC on behalf of a transgender funeral home employee, although the employer’s enforcement of its sex-specific dress code constituted impermissible Title VII sex stereotyping, the employer nevertheless was entitled  to summary judgment because (1) the Religious Freedom Restoration Act (RFRA) prohibited the EEOC from applying Title VII to force the employer to violate its sincerely held religious beliefs; and (2) the EEOC failed to show that applying this standard was the least restrictive means of furthering the compelling government interest of protecting employees from gender stereotyping.  The court also held that the clothing allowance issue was not properly raised by the EEOC.

In a complete reversal, and in a precedent setting case, the Sixth Circuit tossed that decision and granted summary judgment for the EEOC and Stephens.  EEOC v. R.G., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018).  The court held that:

  • the funeral home engaged in unlawful sex discrimination against Stephens;
  • the funeral home did not establish that applying Title VII’s proscriptions against sex discrimination to it substantially burdened the owner’s religious exercise, and the funeral home was not entitled to a defense under RFRA;
  • even if the owner’s religious exercise was substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens; and
  • the EEOC could proceed with the discriminatory clothing allowance claim because an investigation into the funeral home’s policy was “reasonably expected” to grow out of the original EEOC charge of sex discrimination.

Following on the heels of the Second Circuit’s February 26th  decision that sexual orientation discrimination is prohibited under Title VII, this case provides another win for LGBTQ workers.  It makes Supreme Court review of the subject(s) (most employment lawyers view the two issues as distinct from a legal theory point of view) all that more likely in the next term.

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