Sixth Circuit: Transgender and Transitioning Status Discrimination Prohibited Under Title VII


Employers with MI, OH, KY, and TN Employees


March 7, 2018


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On March 7, 2018, the Sixth Circuit Court of Appeals became the first federal appeals court to state that transgender and transitioning employees are protected under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on specific protected categories.  Further, the circuit court stated that “sincerely held religious beliefs” do not shield employers from Title VII discrimination claims.

In Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., employee Aimee Stephens, a transgender woman born biologically male, was originally hired when presenting as male. After six years of employment, she informed the employer of her intent to present as female and to dress accordingly.  The company terminated her employment, citing a religious belief that a person’s sex is immutable and that it would be inappropriate for Stephens to wear women’s clothing. However, the Sixth Circuit reasoned that discriminating against individuals for failing to conform with stereotypical gender norms is prohibited by Title VII, and discrimination based on transgender and transitioning status is “necessarily discrimination on the basis of sex.”

Further, the court stated that the Religious Freedom Restoration Act (“RFRA”) defense, which protects employers from complying with a law that substantially burdens their religious exercises, did not apply in this scenario. The RFRA protects religious exercise, not simply “religious beliefs.” The employer argued that (1) they felt customers would be upset by Stephen’s transition, and (2) the funeral home director would violate his own faith by permitting Stephens to continue working. However, the court noted that customers’ presumed bias does not excuse employer discrimination, and that tolerating Stephen’s personal understanding of gender is not equivalent to the funeral home endorsing Stephen’s views.

This decision follows other circuit courts in the evolution of LGBT+ rights.  Last year, the Seventh Circuit recognized sexual orientation as a federally protected class, as did the Second Circuit just a week prior to Stephens. Stephens is significant in stating that hiring a transgender employee in compliance with anti-discrimination laws did not prevent an employer from maintaining its own religious beliefs, and was not considered a substantial burden.

Action Items

  1. Have policies and procedures reviewed for compliance with the recent ruling.
  2. Have hiring managers trained on hiring policies, including anti-discrimination requirements in line with the recent ruling.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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