You likely saw this recent case in your news feed. And some of you may wonder how or why. Can an employer have religious objections to continuing a transgender employee’s employment? Is this issue coming to your state? Good questions. Here are some answers.
“Delores” (formerly “Henry”) worked at a funeral home in Michigan. The business is owned by “Brett,” who has been a Christian for more than 65 years. One day, Delores gave Brett a letter. Its sum and substance: Delores had struggled with a “gender identity disorder” her “entire life” and had “decided to become the person that [her] mind already [was].” She planned on living as a woman for one year and then undergoing “sex reassignment surgery.” Brett’s reaction: “This is not going to work out.”
Delores complained to the Equal Employment Opportunity Commission (EEOC), which took up her case. It found a violation and sued in federal court. The trial court tossed out the lawsuit, but a court of appeals said it was wrong to do so. (By the way, as the case slogged through the court system, Delores completed her transition.)
I get asked that question. Surely, say those who ask, Congress never intended to protect transsexuals. After all, they reason, history informs us that “sex” was inserted into Title VII of the Civil Rights Act of 1964 to defeat the effort to make race discrimination unlawful. But the appeals court cited the late Justice Antonin Scalia. In the Oncale case, which held that same-sex harassment is prohibited by Title VII, Scalia wrote:
Statutory prohibitions (such as Title VII) 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 we are governed.
In 1989, Title VII was extended to prohibit sex stereotyping in Price Waterhouse, which was decided by the U.S. Supreme Court. A woman was allegedly denied partnership in an accounting firm because she did not act feminine enough. The Court held that was discrimination based on sex. So, too, said the U.S. 6th Circuit Court of Appeals in Delores’ case:
[Brett’s] decision to fire [Delores] because [Delores] was “no longer going to represent himself as a man” and “wanted to dress as a woman” . . . falls squarely within the ambit of sex-based discrimination that Price Waterhouse . . . forbid.
Anything else? Well, yes. The appeals court relied on a case from 2008 (the law develops slowly, but develop it does) that dealt with an identical situation. The 6th Circuit discussed that case’s elegant and simple reasoning:
There, the court noted that an employer who fires an employee because the employee converted from Christianity to Judaism has discriminated against the employee “because of religion,” regardless of whether the employer feels any animus against either [religion], because “[d]iscrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.”
Same here, said the 6th Circuit. There was evidence that the termination decision was based on Delores’ desire to change her sex. Indeed, Brett justified firing her by explaining that he “sincerely believes that ‘the Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.’” So Delores’ sex necessarily factored into the decision.
What About Religion?
The First Amendment to the U.S. Constitution provides for the free exercise of religion. In 1993, Congress enacted the Religious Freedom Restoration Act to broaden the Free Exercise Clause. The government (in this case, the EEOC) cannot take any action that would substantially burden a person’s sincere exercise of his religious beliefs. Brett argued that by being required to maintain a transgender person on the payroll, he was being compelled to endorse Delores’ choice. Here is the 6th Circuit: “Bare compliance with Title VII—without actually assisting or facilitating Delores’ . . . transition efforts—does not amount to an endorsement of Delores’ . . . views.” EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir., 2018).
Coming to Texas?
I think so. The reasoning of the 6th Circuit is solid. In fact, this case may hit the Supreme Court’s docket before the federal appeals court covering Texas has to grapple with the issue. If so, Justice Anthony Kennedy would cast the deciding vote. Recall that a few years ago, he wrote the opinion upholding the legality of gay marriage.
The law changes, and employers must change with it. Some employees may not like having transgender employees protected, just as some workers did not want to work alongside black employees. Or some clients may not care to be served by a transgender person. The customer is not always right. As a new lawyer some 37 years ago, I was involved in a case in which a customer refused to have a black clerk bag his groceries. My advice: Tell the customer to go elsewhere. Here are some tips if employees have issues with transgender people at work:
- Educate yourself on gender transition.
- Ask transitioning employees how they would like their transition to be handled in the workplace and by their colleagues.
- If an employee says he won’t put up with working with a transitioning worker, tell him that he is welcome to work elsewhere.
Promise: In 10 years, once people become acclimated to a new reality, any controversy today will seem outdated and quaint.