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March 2018

Transgender Funeral Director

Recently, the U.S. Sixth Circuit Court of Appeals concluded that a funeral home violated Title VII of the Civil Rights Act, which prohibits, among other things, discrimination based on sex, by firing an employee after she announced that she would begin transitioning from a male to female. The funeral home is owned by a Christian man who testified that he holds a sincere belief that allowing one of the funeral home’s employees to deny their sex while acting as a representative of the company would violate “G-d’s commands.” A mission is included in the funeral home’s website, which identifies its “highest priority” as “honor[ing] G_d in all that we do as a company and as individuals.” According to the discharged employee, the reason given by management for terminating her employment was that the public would not accept her transition.

Concluding that that the EEOC could not sue for discrimination based solely on the employee’s transgender and/or transitioning status, the lower court nonetheless found that the EEOC stated a claim for discrimination in violation of Title VII based on the employee’s failure to conform to the funeral home’s sex based preferences, expectations or stereotypes. The Sixth Court overturned the lower court’s decision in part, and expressly held that discrimination on the basis of transgender and transitioning status alone violates Title VII. Additionally, the Sixth Circuit overturned the lower court’s holding that the Religious Freedom Restoration Act (RFRA) precluded the EEOC’s suit against the funeral home. Under the RFRA, the government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In rejecting the funeral home’s RFRA defense, the Sixth Circuit concluded as a matter of law that a religious claimant cannot rely on the presumed biases of customers to establish a substantial burden under the RFRA and that tolerating an employee’s understanding of her sex and gender identity is not tantamount to supporting it.

The Sixth Circuit case is instructive based on its express holding that discrimination based on an individual’s transgender and/or transitioning status is prohibited under Title VII in addition to sexual stereotyping based on an individual’s gender identity. Gender identity claims under Title VII are actionable in the Eleventh Circuit, which covers Florida.