Sixth Circuit Rules That Sex Discrimination Includes Discrimination On The Basis Of Transgender Status & Transitioning Identity

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination on the basis of sex. Under Title VII, an employer engages in unlawful sex discrimination when it subjects an employee to an adverse employment action based on the employee’s failure to conform to sex stereotypes about how an individual of his or her gender should look and behave. As determined by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), employers are prohibited from making employment decisions based on a requirement that employees “match the stereotypes” associated with their particular sex. Thus, evidence that an adverse employment action was based on an employee’s failure to conform to expected sex stereotypes constitutes discrimination on the basis of sex in violation of Title VII. 

Although courts have long recognized that Title VII forbids discrimination because of an employee’s failure to conform to sex stereotypes, courts have struggled with the question of whether discrimination on the basis of transgender status and transitioning identity constitutes discrimination on the basis of sex in violation of Title VII. To date, most federal courts to squarely address the issue have held that discrimination on the basis of transgender status and transitioning identity is not discrimination on the basis of sex in violation of Title VII. In doing so, these courts have ruled that employees are not protected from discrimination on the basis of transgender status and transitioning identity under Title VII. However, as the recent decision by the U.S. Sixth Circuit Court of Appeals in EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2018 WL 177669 (6th Cir. Mar. 7, 2018) reflects, the tide is beginning to turn and courts are ruling that discrimination on the basis of transgender status and transitioning identity constitutes discrimination on the basis of sex in violation of Title VII.

Employee Fired Because “He Wanted To Dress As A Woman”

In that case, Aimee Stephens (Stephens), a transgender woman, brought a sex discrimination lawsuit against her former employer, R.G. & G.R. Harris Funeral Homes, Inc. (Funeral Home), pursuant to Title VII. During her employment, Stephens provided the Funeral Home’s owner with a letter stating that she has struggled with “a gender identity disorder” her “entire life,” informing the owner that she “intended to have sex reassignment surgery,” and explaining that “the first step she must take is to live and work full-time as a woman for one year.” As a result, Stephens informed the owner that she would begin to represent herself and dress as a woman while at work. Shortly after receiving the letter, the owner fired Stephens. The owner told Stephens that “this is not going to work out” and offered her a severance agreement if she “agreed not to say anything or do anything.” Stephens did not accept the severance agreement. When deposed during the litigation, the owner testified that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”

In claiming that she was fired on the basis of sex in violation of Title VII, Stephens pursued two theories of liability. First, Stephens argued that she was fired because of her failure to conform to sex stereotypes. Second, Stephens argued that she was fired on the basis of her transgender status and transitioning identity. The trial court rejected both theories of liability and dismissed Stephens’ sex discrimination lawsuit. On appeal, the Sixth Circuit reversed the trial court’s decision and reinstated Stephens’ sex discrimination action.

Discrimination On The Basis Of Sex Stereotypes

In reversing the trial court’s decision, the Sixth Circuit found that the Funeral Home “engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behavior in a manner that contradicts the Funeral Home’s perception of how she should appear or behave based on her sex.” The appellate court explained that the owner’s decision to fire Stephens because Stephens was “no longer going to represent himself as a man” and “wanted to dress as a woman” fell “squarely within the ambit” of Title VII’s prohibition against sex stereotyping. The appellate court also pointed out that the Funeral Home failed to establish that a non-discriminatory reason for Stephens’ termination, and the owner admitted that he did not fire Stephens for any performance related issues. Thus, the appellate court concluded that the Funeral Home “discriminated against Stephens on the basis of sex in violation of Title VII.”

Discrimination On The Basis Of Transgender Status

In reversing the trial court’s decision, the Sixth Circuit also held that “discrimination on the basis of transgender and transitioning status violates Title VII.” In support of its holding, the appellate court explained that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The appellate court further reasoned that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping” because “a transgender person is someone who fails to act and/or identify with his or her gender.” Thus, the appellate court observed, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Consequently, the Sixth Circuit concluded that Stephens “could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity.”

Free Consultation With Marion County Sex Discrimination Lawyers 

Based in Ocala, Florida and representing employees throughout Central Florida, we have almost twenty years of experience litigating gender discrimination claims. If you have been the victim of sex discrimination, or have questions about discrimination on the basis of transgender status and transitioning identity, please contact our office for a free consultation with our Marion County, Florida sex discrimination attorneys. Our employee rights law firm takes gender discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.