Sixth Circuit Extends Title VII Protection to Transgender Employees

Joining the Second and Seventh Circuits, the Sixth Circuit issued a decision last month that extended Title VII protection for individuals who are transgender or transitioning in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). 

The case involves Aimee Stephens, who had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes ("Funeral Home") when she informed the funeral home's owner that she is a transgender woman and intended to start dressing in appropriate business attire for women as part of her transition. The owner of the funeral home fired Stephens because of Aimee's transgender status, claiming that he would violate God's commands if he permitted funeral directors to deny their sex while representing the funeral home and would render him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."

After her termination, Stephens filed a charge of discrimination with the EEOC. The EEOC determined that there was reasonable cause to believe that the Funeral Home fired Stephens due to her sex and gender identity. The EEOC also found the Funeral Home to be in violation of Title VII because it provided male employees with a clothing benefit which was denied to females. After the EEOC's informal conciliation process failed, the EEOC filed a complaint in federal court against the Funeral Home on September 25, 2014.

After the parties cross-moved for summary judgment, the District Court determined that there was direct evidence to support Stephen's claim of employment discrimination on the basis of her sex. However, the Court nevertheless found in the Funeral Home's favor, concluding that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden the Funeral Home's religious exercise, and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home.”

The EEOC timely appealed, and Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephen's interests in the case. Stephen's request was granted by the Sixth Circuit on March 27, 2017. 

On appeal, the Sixth Circuit overturned the district court, finding that Stephens was protected by Title VII because the Funeral Home's decision to fire Stephens necessarily implicated Title VII's proscriptions against sex stereotyping, which is already protected under the court’s precedent in Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004) and Supreme Court precedent from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As to the employer’s free exercise of religion defense, the Sixth Circuit reversed the district court’s decision, holding that forcing the funeral home to comply with Title VII did not meet the RFRA’s substantial burden requirement, in part because the funeral home could not rely on the presumed gender biases of its customers to establish a substantial burden on its free exercise of religion. The ruling affirms that transgender individuals are protected by federal sex discrimination laws, and that religious belief does not give employers the right to discriminate against them.

California Mandates Employers Display Transgender Rights Poster in Workplace

On October 15, 2017, Governor Brown approved SB 396, a law that requires California employers with 5 employees or more to display a poster about transgender employment rights in a prominent and accessible location in the workplace with other mandatory workplace notices.

California's Department of Fair Employment and Housing recently issued the new mandatory poster, which addresses key topics such as the right of employees to use restrooms, locker rooms, and other similar facilities corresponding to their gender identity and to dress in accord with their gender identity and expression.

California's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against any employee on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

The poster follows regulations developed by the Fair Employment and Housing Council that went into effect in July 2017. SB 396 also requires mandatory sexual harassment prevention to include a component regarding gender identity, gender expression, and sexual orientation for California employers with at least 50 employees.

If you feel you have been subjected to unlawful discrimination or sexual harassment in the workplace, please contact Bryan Schwartz Law today.

Seventh Circuit Holds that Discrimination against Transgender Student is Cognizable Sex Discrimination under Title IX and the 14th Amendment

The U.S. Court of Appeals for the Seventh Circuit has affirmed a preliminary injunction requiring a Wisconsin high school to permit a transgendered male student to use the boys’ bathrooms. (Link to the landmark opinion in Whitaker v. Kenosha Unified School District here.) In affirming the preliminary injunction, the Court ruled that the student – Ash Whitaker – could state a claim for sex discrimination based on his transgender status under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment. The decision has wide-ranging implications outside the context of education, particularly for employment law, as the Court described the close relationship between Title IX and Title VII (of the Civil Rights Act of 1964, prohibiting employment discrimination), and largely relied on case law developed under Title VII to reach its conclusion. The ruling is also significant because it comes on the heels of the Trump Administration’s cruel decision in February 2017 to rescind President Obama’s administrative guidance stating that schools should permit students to use bathrooms consistent with their gender identity.

Ash, a high school senior who has just graduated, first came out as a transgender male to his family in eighth grade and began to publicly transition shortly thereafter, a process that included hormone replacement therapy and a legal name change. Ash and his mother repeatedly requested permission for him to use the boys’ bathroom while at school. The school repeatedly denied the requests, telling Ash he could only use the girls’ bathrooms or a staff-only gender-neutral bathroom located far from his classes. Ash did not want to undermine his transition by using the girls’ bathroom, and did not want to draw further attention to himself as the only student with access to the staff-only bathroom (not to mention the fact that using the staff-only bathroom made it impossible to get to class on time).

Ash alternated between restricting his water intake, resulting in adverse health effects, and sneaking into the boys’ bathroom. Ash and his mother continued to ask the school for relief, without results. The school demanded medical documentation, which Ash provided, but, ultimately, the school stated that it could not honor the request unless Ash completed a surgical transition, notwithstanding that the procedure is prohibited for minors. At one point, the school instructed its security guards to monitor Ash’s bathroom use, and he was removed from class for failing to comply with the school’s unwritten and inconsistent policies. Throughout this course of events, Ash’s symptoms of depression worsened, leading to suicidal ideation.

Ash filed suit the summer before his senior year, and obtained a preliminary injunction from the district court which required the school to allow Ash to use the boys’ bathroom and prevented the school from further monitoring his bathroom use. The school then appealed the preliminary injunction to the Seventh Circuit.

The Court (in a unanimous decision authored by Judge Anne Claire Williams) first determined that Ash had made a showing of irreparable harm and that no adequate remedy at law existed, casting aside the school’s argument that monetary relief could make him whole, stating: “We cannot say that this potential harm – his suicide – can be compensated by monetary damages.” The Court then addressed the likelihood of success on the merits in the underlying lawsuit and the balance of harms.

As to Ash’s Title IX claim, the Court looked to the development of sex-discrimination based on sex-stereotyping under Title VII, starting with the Supreme Court’s 1989 Price Waterhouse v. Hopkins decision, in which an employer was found to have discriminated against a female employee because she was perceived as too masculine. The Seventh Circuit also looked to its own en banc decision earlier this year, which established that Title VII also prohibits sexual orientation discrimination based on a sex-stereotyping theory. The argument is straight forward: if discrimination based on an individual’s lack of conformity to established gender norms is sex discrimination, then it follows that discrimination based on lack of conformity to one’s gender assigned at birth also qualifies. The Court noted that both the 11th and 6th Circuits had previously applied Price Waterhouse to determine that transgender discrimination qualifies as sex discrimination.

With respect to the Equal Protection Clause, the Court explained that, because transgender discrimination is sex discrimination, heightened scrutiny rather than rational basis review applies. Sex-based stereotypes are an insufficient basis to meet this heightened scrutiny, and thus the Court found a likelihood of success as to the 14th Amendment claim as well. The Court did not decide whether discrimination based upon transgender status is per se entitled to heightened scrutiny across the board.

Finally, in considering the balance of harms, the Court eviscerated the school district’s privacy arguments as entirely speculative. The Court also pointed to the fact that Ash had used the boys’ restroom for a six-month period without any student complaints (it was a teacher who eventually reported Ash) as evidence that the privacy argument was based on conjecture alone. The argument that transgender individuals’ presence in public bathrooms not matching their birth gender poses a heightened risk to the safety and privacy of other bathroom users has been advanced by opponents of transgender rights as an unsubstantiated scare tactic. As stated by the Court: “Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect privacy and those who have true privacy concerns are able to use a stall.”

Although not the first appellate-court decision to recognize this theory of transgender discrimination as sex discrimination, Whitaker is a significant step in the fight to expand school, workplace, and other civil rights protections for transgender individuals and the LGBTQ community generally. School administrators and employers must not stigmatize transgender individuals based on speculation about the harms to other students and employees. The fact that the decision followed the Trump Administration’s rescinding of the Obama Administration’s bathroom guidance – and declined to consider or mention it – shows that despite the current Administration’s bigoted attempts to roll back the clock on LGBTQ rights, the critical statutory and constitutional framework for protecting those rights already exists. Protections will continue to become more robust through subsequent judicial decisions like this one.

Supreme Court review of transgender bathroom access appears inevitable, whether through this case, Gavin Grimm’s case in the Fourth Circuit, or another. Once again, all eyes will turn to Anthony Kennedy, who will have another opportunity to cement his unique legacy with respect to LGBTQ rights.

Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.

Defense Secretary Ashton Carter Signals that Transgender Americans Can Serve Openly in the Military

Effective this month, transgender Americans may now serve openly in the U.S. military and can no longer be discharged or otherwise separated from the military just for being transgender.

This decision to allow transgender Americans is one of many recent changes  that has resulted in a transformation of the military.  The Department of Defense also recently opened all combat roles to women and appointed the first openly gay Army secretary.

Defense Secretary Carter said that the military's top leaders, including Gen. Joseph F. Dunford Jr., the chairman of the Joint Chiefs of Staff, were on board with ending the prohibition on transgender service.  Carter also said the Pentagon would cover the medical costs of those in uniform who are seeking to undergo gender transition, though it would expect new recruits who are transgender to spend at least 18 months in their transitioned gender identity before joining the military.

While the decision was heralded by LGBT groups and progressives, there remains stiff opposition to the change in policy from Congressional Republicans. Senator Jim Inhofe of Oklahoma, a Republican member of the Senate Armed Services Committee, called for the new policy to not be carried out until Congress could convene hearings. And Representative Mac Thornberry of Texas, the chairman of the House Armed Services Committee, released a statement saying he would examine “legislative options to address the readiness issues associated with this new policy.”

Secretary Carter said that while practicality played a role in the decision, it was also a "matter of principle."

“Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so,” Carter said. “After all, our all-volunteer force is built upon having the most qualified Americans. And the profession of arms is based on honor and trust.”