A funeral home in Michigan is learning one legal truth on appeal, or as the undertaker might colloquially say, postmortem: Transgender employees are protected from discrimination under Title VII.
Fortunately, no employees were murdered in the making of this appeal, but, according to a three judge panel of the Sixth Circuit Court of Appeals, one was certainly discriminated against. Aimee Stephens sued her former employer, RG and GR Harris Funeral Homes, for firing her after she started to transition from male to female. In addition to the discriminatory termination, Stephens also alleged that a wardrobe allowance that was only provided to male employees constituted additional gender discrimination.
Religion Is No Excuse for Discrimination
While the funeral home owner was successful at the district court level arguing that continuing to employ a transgender individual violated his religious freedoms, the appellate court was quick to shoot down that argument. It explained that: "The Funeral Home's religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes."
As an initial matter, the funeral home conceded the fact that it is not a religious institution meaning that the ministerial exception simply could not apply to it.
Significantly though, the appellate court held that: "But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA." The owner argued that his customers would be bothered and disturbed from their grieving if the funeral director, the plaintiff, was transgender and visible to visitors.
However, the appellate court cut through this bias notion by explaining that the owner had never even seen how the plaintiff presented as female to be able to make a judgment about how grieving visitors would view her. So even though Stephens occupied a public facing role where appearances matter, the owner made the employment decision based on unfounded, biased, assumptions, which rendered the decision discriminatory.