Definition of Gender Discrimination Expanded

The Sixth Circuit Court of Appeals (the Federal Appeals Court which includes Michigan) recently reviewed the firing of a male funeral home director transitioning to female. Ms. Stephens was fired after she advised the funeral home owner, Mr. Rost, that she was intending to live as a woman including utilizing a female name, dressing in women’s clothing and using the women’s restroom. Litigation was filed against the funeral home by the Equal Employment Opportunity Commission (EEOC) claiming that Ms. Stephens was discriminated against due to her gender in violation of Title VII. In response to the lawsuit, Mr. Rost asserted that he was Christian and believed that his highest priority was to honor God and that since he believed that a person’s gender was a gift from God, changing that gender would be a sin. As a Christian he felt that allowing the employee to alter her gender at work was supporting that sin and not honoring God. Mr. Rost also argued that since his funeral home was a religious institution it was exempt from enforcement of the requirements of Title VII.

Title VII is the federal law that prohibits discrimination (termination from employment) based upon a person’s race, color, nationality, religion or sex/gender. Gender has been defined to include how a person perceives the gender, its stereotypes. In lay terms this means that you cannot discriminate against a person for being a certain sex and also you cannot discriminate against a person for not meeting your own expectations or stereotypes of how that gender should dress, act, speak, etc. In other words, you cannot fire a female because you believe that she should be wearing makeup or fire a male because you believe that he is perhaps speaking or walking in a feminine manner. Utilizing this definition, the Court of Appeals found that Ms. Stephens was terminated based upon her gender since she was terminated after she announced that she would no longer meet the stereotype beliefs of Mr. Rost as to how a male should dress and act. The Court believed that Ms. Stephens’ gender was relevant to the employment decision and, therefore, the employment decision was made “because of her sex” which made it a violation of Title VII.

Having found a violation of Title VII the Court then considered Mr. Rost’s argument that the company was precluded from liability under the Religious Freedom Restoration Act (RFRA) since it was a religious institution and the firing was based on a sincere religious belief. The RFRA applies when the government is attempting to intrude on a person’s religious freedoms, here the EEOC was requiring Mr. Rost to allow his male employee to present as a female at work. The RFRA states that a religious institution can, in effect, discriminate against a person in an employment situation without violating antidiscrimination laws, such as Title VII, if conforming to that Act would create a substantial burden in carrying out the religious exercise of the institution. A simple example is the Catholic Church is not violating the law by not allowing women to attend the seminary because this is based upon the tenant that only a man can be a priest.

In this case, for the funeral home to rely on this exemption it had to show that employing a transgender funeral director would impose a substantial burden on its ability to carry out the self-proclaimed religious exercise of the business of “caring for the grieving.” Mr. Rost argued that Ms. Stephens would cause a distraction and this distraction would interfere with the customer’s grieving process.

The Court found that Mr. Rost could not rely on a customer’s potential biases to establish a substantial burden. In other words, any possible distraction Ms. Stephens may cause was not a reason to terminate her. The Court also disagreed that allowing Ms. Stephens to present as a female was not at odds with Mr. Rost’s religious beliefs and, therefore, it was not a substantial burden in carrying out the religions exercise. Tolerating Ms. Stephens’ gender identity decisions was not the same as supporting these decisions so this would not be against his religious belief that challenging one’s gender was a sin.

There are two important takeaways from this ruling: (1) a business cannot allow an employee’s gender, or how a gender is expressed, to be a reason for an employment decision and, (2) in today’s culture of demanding tolerance of self-expression, the courts will bend the laws beyond their original intent to find discriminatory conduct. Discriminatory conduct goes beyond not approving of women in the workplace or not approving of who one chooses to love to not approving of how someone does not conform to your stereotypical beliefs.

If you have any questions regarding this matter, how it may impact your employment decisions, or any question on an employment issue please contact me at your convenience.Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She has a wealth of experience negotiating grievance arbitrations, contract negotiations, and other labor related issues. Ms. Bartos routinely provides assistance in employment relations matters, including defending claims in state and federal courts involving civil rights, wrongful discharge, discrimination, the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA). She may be reached at (734) 261-2400 or sbartos@cmda-law.com.