Bias Against Transgender Workers Is Sex Bias Under Federal Law (1)

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By Patrick Dorrian

Discrimination against a worker based on gender identity or because the person is transitioning between genders is sex discrimination that violates existing federal law, a federal appeals court held in a landmark ruling.

The first-of-its-kind decision by the U.S. Court of Appeals for the Sixth Circuit is the second significant win in 10 days for LGBT workers on issues that many predict will ultimately go to the U.S. Supreme Court. The court delivered its ruling March 7. The U.S. Court of Appeals for the Second Circuit ruled Feb. 26 that discrimination against a worker who is gay, lesbian, or bisexual is discrimination based on sex.

Although the issues are closely connected, most courts have handled them as distinct legal questions.

The Sixth Circuit decision reverses a lower court, granting judgment to the Equal Employment Opportunity Commission on whether Title VII of the 1964 Civil Rights Act’s covers transgender workers. The court ruled against R.G. & G.R. Harris Funeral Homes Inc. The EEOC is the federal agency that enforces U.S. anti-discrimination laws against private employers, and it brought the case on behalf of fired transgender employee Aimee Stephens.

The decision means transgender workers in Kentucky, Michigan, Ohio, and Tennessee—which make up the Sixth Circuit—don’t have to provide additional evidence that the bias they allegedly faced was also based on illegal sex stereotyping or “gender nonconforming” behavior.

The ruling, which also revived EEOC claims that the funeral home’s employee dress code is sexually discriminatory, was lauded by LGBT rights advocates. But R.G. & G.R. Harris signaled that it might take the case to the Supreme Court.

“American business owners, especially those serving the grieving and the vulnerable, should be free to live and work consistently with their faith,” Gary McCaleb, senior counsel with Alliance Defending Freedom, told Bloomberg Law in a March 7 email. ADF represented the funeral home in the case.

“Harris Funeral Home’s dress code is tailored to serve those mourning the loss of a loved one. Today’s decision misreads court precedents that have long protected businesses which properly differentiate between men and women in their dress and grooming code policies,” McCaleb’s statement said. “Court opinions should interpret legal terms according to their plain meaning when Congress passed the law. This opinion instead re-writes federal law and is directly contrary to decisions from other federal appellate courts. We are consulting with our client to consider their options for appeal.”

The American Civil Liberties Union, which represented Stephens as an intervenor in the case, said it was “thrilled” with the outcome.

“Today’s decision is an exciting and important victory for transgender people and allied communities across the country,” John Knight, a senior staff attorney at the ACLU’s LGBT and HIV Project, said in a March 7 statement. “In too many workplaces around the country, coming out as trans is a fireable offense, as our client Aimee Stephens personally experienced.”

“But this ruling affirms that that is illegal, setting an important precedent confirming that transgender people are protected by Title VII of the Civil Rights Act,” Knight said. “It also ensures that employers will not be able to use their religious beliefs against trans employees, ruling that there is no ‘right to discriminate’ in the workplace. We are thrilled for Aimee, and for all trans folks, to be able to announce this win today.”

LGBT Community Breathes ‘Sigh of Relief’

The court also rejected the company’s argument that it didn’t violate Title VII because keeping Stephens on as an employee after she informed owner Thomas Rost that she would be transitioning from male to female in the workplace would have violated his sincerely held religious beliefs.

“A lot of people are breathing a sigh of relief” after seeing that part of the court’s decision, Gregory Nevins, a senior attorney with Lambda Legal Defense and Education Fund Inc. in Atlanta, told Bloomberg Law. Lambda Legal filed an amicus brief in the case supporting Stephens and the EEOC.

The Sixth Circuit strongly dismissed the notion that the Religious Freedom Restoration Act “can be used as a tool to discriminate,” Nevins said March 7. “That certainly was a concern for many in the LGBT community,” even in jurisdictions with state or local laws that expressly prohibit bias based on gender identity and sexual orientation bias, he said.

“RFRA’s not a blank check to discriminate,” Nevins said. The Sixth Circuit said it doesn’t violate a business owner’s religious rights to prohibit him from firing a worker for being transgender, Nevins said.

Big Wins for EEOC

The decision, like the Second Circuit’s gay bias ruling in Zarda v. Altitude Express, Inc., was another major win for the EEOC. The agency started the ball rolling on the reexamination by federal courts’ of earlier rulings that rejected coverage for LGBT workers under the plain language of Title VII.

The EEOC, which also adjudicates job discrimination claims brought by federal workers against their employers, held in a pair of administrative rulings in 2012 and 2015 that the meaning of “sex” has changed since Title VII was passed in 1964 and is now widely understood to include a person’s sexual orientation and gender identity.

Federal appeals courts that have looked again at the law in the wake of the EEOC’s rulings have divided on the issue as it relates to sexual orientation bias. The Second Circuit joined the Seventh Circuit in holding that lesbian, gay, and bisexual workers don’t have to show that bias was motivated by sexual stereotyping to be protected by Title VII. The Eleventh Circuit, on the other hand, declined to overturn its prior precedent saying that sexual orientation bias isn’t expressly prohibited under the 1964 law.

The Sixth Circuit appears to be the first circuit to address anew in a published opinion whether Title VII’s sex bias prohibition also outlaws gender identity bias in the absence of proof that the discrimination targeted a worker for behavior that allegedly didn’t conform to perceived traditional gender stereotypes, Nevins said.

The EEOC didn’t immediately respond March 7 to Bloomberg Law’s request for comment.

Judge Karen Nelson Moore wrote the opinion, which was joined by Judges Helene N. White and Bernice B. Donald.

Anne Noel Occhiallino of the EEOC in Washington represented the commission. The ACLU Foundation’s Jay D. Kaplan and Daniel S. Korobkin also represented Stephens. ADF’s Douglas G. Wardlow also represented R.G. & G.R. Harris.

The case is EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 6th Cir., No. 16-2424, summary judgment reversed 3/7/18.

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