Employer Defeats Transgender Discrimination Lawsuit by Citing Religious Freedom

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 22, 2016

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Last week a federal court ruled in favor of an employer sued by the EEOC on behalf of a male-to-female transgender employee who alleged sex discrimination led to wrongful termination.  The case turned on the employer’s right to exercise religious beliefs, and is another decision in a growing list of lawsuits which pit employer religious freedom against LGBT anti-discrimination rights.

Funeral Home Fires Transgender Employee over Dress Code

EEOC v R.G. & G.R. Harris Funeral Homes, Inc. arose after a Michigan funeral home fired a transgender employee for violation of company dress code.  The funeral home required male employees to wear traditional suits and female employees to wear skirt suits, and ran into a conflict when the employee transitioned from Andrew Stephens (male) to Aimee Australia Stephens (female) and insisted upon wearing the required female attire accordingly.  Citing religious objections to the transgender employee, Harris funeral home dismissed Stephens who responded by filing a wrongful termination suit with the Equal Employment Opportunity Commission (EEOC).

After reviewing Stephens’s claim, the EEOC filed a lawsuit against Harris Funeral Homes for violating Title VII’s prohibition against sex discrimination, alleging the employer had taken unlawful action when it dismissed the plaintiff for being transgender.  Attorneys for Harris funeral home responded to the lawsuit by alleging the defendant was exempt from a Title VII lawsuit in this case because the business owners were acting consistent with their religious beliefs.  The resulting conflict between religious freedom and LGBT anti-discrimination presented a unique challenge to the federal judiciary which tested the limits of Title VII as a vehicle for advocates of LGBT rights to end workplace discrimination.

Title VII and Sexual Orientation Discrimination

Although Title VII does not specifically protect LGBT individuals from discrimination based on sexual orientation, courts have held employers liable for forcing employees to fill traditional gender roles under Title VII’s ban on discrimination based on sex.  Sex-stereotyping practices are illegal, and the men and women of the LGBT community have attempted, with some success, to fit discrimination based on sexual orientation under this accepted mechanism.  Under this application of Title VII employees have successfully uprooted gender-specific dress codes, grooming policies, and behavior standards which require men and women to look and act in a manner consistent with traditional roles.

While it has not been sufficiently applied to transgender individuals, the legal theory should also apply to Aimee Stephens because she was fired for dressing and acting in accordance with the gender she identified with as opposed to her biological gender.  A growing body of case law has found that when employers hold sex-specific expectations of employees, they could be violating Title VII’s prohibition against discrimination based on sex.  As I have discussed, this is an imperfect mechanism which does not provide absolute protection to LGBT workers who allege discrimination based on their sexual orientation, however, absent Congressional intervention it is the only legal avenue for redress when employers stereotype gay or transgender workers.

The added wrinkle fatal to Stephens’s case was the religious freedom exemption which encumbers laws that conflict with religious beliefs with a stiff burden of proof of constitutionality. In this case, Harris earned a dismissal because the relief sought by the EEOC infringed upon the funeral home’s religious freedom without sufficient proof that doing so was necessary.

Religious Freedom Defeats Transgender Discrimination Claim

The Religious Freedom Restoration Act (RFRA) allows employers exempt from provisions of Title VII if (A) the objection is based on sincere religious belief and (B) the federal law substantially burdens the employer’s ability to act consistently with the belief unless (C) the federal law serves a compelling government interest and (D) denying the exemption is the least restrictive means of serving that interest. In this case, the family-owned Harris Funeral Home defended its firing of Stephens’s by saying the company believed that the Bible says sex is an immutable God-given characteristic and the owner believed he “would be violating God’s commands” by permitting an employee to deny their biological sex.  Citing this position, the court found that Harris had satisfied parts (A) and (B) of RFRA’s allowable exemption to Title VII.

In regards to (C) and (D), the court found that the government does have a compelling interest in protecting employees from discrimination which costs them their jobs – thus satisfying point (C) – however, ruled in favor of Harris because the EEOC had not, according to the court, satisfied point (D).  According to the opinion, the EEOC – which sought Stephens’s reinstatement, permission for her to wear a skirt suit in accordance with the female dress code, and back pay – had not proposed a less-restrictive solution.  The court noted that the EEOC had attempted to force Harris to allow a transgender individual to dress with the gender of identification rather than proposing Harris adopt a gender neutral dress code.

As a result, RFRA allowed Harris’s religious based objection to exempt the funeral home from a potential Title VII claim.  Whether or not the court’s logic holds up on appeal remains to be seen, but the ruling does reinforce an emerging pattern: unlike marriage equality, workplace anti-discrimination policy protecting LGBT employees will face a stiff challenge across the federal court system, likely forcing advocates to seek relief from Congress.

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