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  • March 26, 2018

    Sixth Circuit: Transgender Employee Rights Protected by Title VII

    The Sixth Circuit Court of Appeals recently became the first federal appellate court to recognize that discrimination in employment of a transgender employee is sex discrimination under Title VII of the Civil Rights Act of 1964. Katherin Charlton discusses the decision and its possible impact in Wisconsin.

    Katherine L. Charlton

    transgender symbol on hand

    The Sixth Circuit Court of Appeals issued an important decision in March 2018 concerning the rights of transgender employees in the workplace.

    In EEOC v. R.G. & G.R. Harris Funeral Homes1, the Sixth Circuit held that:

    1. Title VII of the Civil Rights Act of 1964 (Title VII) as amended applies to transgender employees, and

    2. Religious Freedom Rights Act2 (RFRA) was not an effective defense to enforcement under Title VII.


    Aimee Stephens worked for six years as William Stephens, an employee of the R.G. & G.R. Harris Funeral Homes in Detroit.

    Katherine L. Charlton Katherine L. Charlton, Vermont 1983, is a shareholder in Hawks Quindel, S.C.’s Milwaukee office, where her practice focuses on employment law representing employees, family law, and fair housing law.

    After she told her employer that she was transitioning from being a man to a woman, owner of the funeral home fired her, because he believed a person’s sex is an “immutable God-given gift,” and that he perceived his customers would find her status as a transgender woman offensive.

    The Equal Employment Opportunity Commission (EEOC) asserted claims under Title VII on Stephens’s behalf. The funeral homeowner argued Title VII did not cover transgender employees, and even if it did, enforcement violated his rights under RFRA.

    Transgender Employees Are Protected under Title VII’s Sex Discrimination Provision

    Title VII does not expressly prohibit discrimination on the basis of an employee’s sexual orientation, gender identity, or being transgender. Nevertheless, the EEOC has included all three in its interpretation of Title VII sex discrimination.

    In addition, the Second and Seventh Circuit Courts of Appeals recognized in the last year that sexual orientation is a form of sex discrimination under Title VII.

    In issuing the decision in the Stephens case, the Sixth Circuit Court of Appeals became the first federal court of appeals to rule that Title VII sex discrimination applies to transgender employees.

    EEOC’s Enforcement Effort Did Not Violate Religious Freedom Rights Act

    Federal courts will likely grapple more often in the near future with the charged national climate surrounding balancing religious freedom and LGBTQ rights in the workplace.

    Congress enacted RFRA to address the balance between an individual’s exercise of their religion and the government’s interest in enforcing the laws enacted by Congress. RFRA requires that federal laws that impose a “substantial burden” on the religious liberty of an individual be the “least restrictive means” of furthering a “compelling government interest.”

    In its decision, the Sixth Circuit accepted the owner’s religious beliefs as being genuinely held, but found that enforcement of Title VII in his workplace would not substantially burden his exercise of his religious beliefs because continuing to employee Stephens was not “tantamount to supporting” her beliefs concerning her gender identity.

    The owner also could not use his unsupported speculation about his customer’s perceptions of a transgender employee to support showing a “substantial burden” on his exercise of his religion.

    In language that could expand the scope of the decision if it is adopted by other federal courts of appeal, the Sixth Circuit announced that even if the owner of the funeral home established that obligating him to continue to employ Stephens was “substantially burdensome” to him, the EEOC’s enforcement of Title VII was the least restrictive way of enforcing their compelling interest in eradicating discrimination in the workplace.

    Impact in Wisconsin Uncertain

    The impact of the Stephens case in Wisconsin is uncertain. The decision is not binding in the Seventh Circuit, which hears appeals from our federal district courts.

    Nevertheless, because the Seventh Circuit issued its decision in Hively v. Ivy Tech Community College3, which recognized that Title VII protects employees who are discriminated against because of their sexual orientation, the court may be receptive to an interpretation of Title VII that protects transgender employees.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.


    1 2018 US App LEXIS 5720 (6th Cir. 2018)

    2 42 U.S.C. Section 2000bb-4 et seq.

    3 853 F.3d 339 (7th Cir. 2017)

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