Thursday, March 8, 2018

Sixth Circuit Holds Discrimination Based on Gender Identify Violates Title VII

Joining the 7th and 2nd Circuit Courts of Appeals, this week the 6th Circuit held that transgender and transitioning status violates Title VII of the Civil Rights Act of 1964.

Finding 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” and “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping”, the court reversed the lower court and found that an employer who fired an employee after the worker notified his employer that he was going to begin the transition process upon return from vacation. Prior to the employee's vacation, the employer discharged the worker stating “this is not going to work out” despite the excellent performance record of the employee. (We reported on this case at the lower court level here).

The employer, a Michigan Funeral Home, operated by the majority owner who is a professed devout Christian, raised defenses including that his religious beliefs included that gender is an immutable God-given characteristic and that the employee/plaintiff would violate the employer’s dress code if he were to begin presenting (and dressing) as a woman.  The court rejected these arguments as well.

With three federal appellate courts holding that gender identity is prohibited by Title VII and one federal appeals court ruling to the contrary, the issues become even more likely to be headed to the U.S. Supreme Court to resolve the conflict. We will keep you apprised of developments on these issues.