Equal Employment Opportunity Commission and Stephens v. R.G. & G.R. Harris Funeral Homes, Inc. - U.S. Court of Appeals for the Sixth Circuit (No. 16-2424)
Briefs and Court Filings
Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that is not the case here. Here, the only reasons provided by the employer were all related, directly and unequivocally, to Ms. Stephen’s sex. Accordingly, Title VII applies, and the discharge should be held unlawful.
This argument proceeds in three parts. First, we assert that Title VII directly applies in this matter. More specifically, we explain why discrimination against Ms. Stephens, solely because of her transsexual identity, is discrimination “based on sex” and is therefore unlawful under Title VII.
Second, and consequently, we explain why the district court erred in its analysis of this issue. We review the assertions made by the district court, according to which transgender persons are not protected under Title VII, and show why they were made in error according to Sixth Circuit law.
Finally, we explain why the result we reached is desirable in terms of policy. We explain that recognizing “sex discrimination” in the transgender context is a natural, reasonable interpretation of Title VII. We review both the statute’s legislative history and subsequent legal developments pertaining to sexual minorities and conclude that the result sought here—the protection of transgender persons at work—is both desired and inevitable.
Equality Ohio limits its argument here to the Title VII issues. It does not consider RFRA. With that, Equality Ohio is of the opinion that Title VII is a “super statute,” as noted by Professor Eskridge. Accordingly, no employer—whether sued by the Federal Government or otherwise—should be able to overcome its formidable apparatus simply by invoking RFRA. Title VII, now over half a century in age, was not designed to be overturned each time an employer’s religious beliefs (genuine or newly-found) are brought to the fore.
Kalir, Doron M. and Kowalski, Kenneth J., "Amicus Curiae Brief of Equality Ohio in Support of Intervenor Urging Reversal" (2017). Law Faculty Briefs. 23.