Employer Religious Freedom and LGBT RightsLast year we reported on an important LGBT case involving a Michigan corporation that fired a transgender female employee (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.). The Equal Employment Opportunity Commission (EEOC) argued Title VII’s ban on sex discrimination prohibits bias based on gender identity. The funeral home’s majority shareholder claimed the termination was shielded by the Religious Freedom Restoration Act (RFRA). The district court judge ultimately agreed, but the case has been appealed.

The District Court’s Decision – Title VII does not Expressly Cover Transgender and Protecting Corporate Religious Belief

The district court reasoned  transgender status is not a protected class under Title VII. But a transgender plaintiff may still bring a claim under Title VII under a sex-stereotyping gender-discrimination claim if that person’s failure to conform to sex stereotypes was the driving force behind the termination.

However, the district court further concluded that the funeral home’s majority shareholder, Thomas Rost, had a religious freedom defense to the Title VII claim under the RFRA. Mr. Rost believed he would be “violating God’s commands” if he allowed workers to “deny their sex” while representing the funeral home.

The RFRA generally bars government action that substantially burdens an “individual’s” sincerely held religious beliefs if the government didn’t take the “least restrictive means” to achieve its interests. 42 U.S.C. §§ 2000bb-1(a),(b). By its terms, the RFRA protects religious exercise, not religious beliefs. See 42 U.S.C. § 2000bb-1(a).

Religious Exemption – Appeal to a Higher Power

The case was appealed to the Sixth Circuit. Interestingly, numerous clergy and religious organizations, including the Anti-Defamation League, Muslim Advocates, the Interfaith Alliance Foundation, the People for the American Way Foundation, and 76 Christian and Jewish clergy joined in a friend-of-the-court brief asking the federal appeals court to reverse the decision. This brief was filed by the Americans United for Separation of Church and State. Here is a passage:

If the district court’s decision is allowed to stand, ‘for-profit businesses would have broad—indeed, nearly limitless—license to engage in unlawful and invidious discrimination through a simple expedient: describing their decision as religiously based.

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The [Religious Freedom Restoration Act] provides important safeguards for religious exercise. But it does not and cannot upend all employment-discrimination law.

Where the EEOC and Courts Stand on Religious Defense and LGBT Protections

The EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. If the Sixth Circuit does not reverse the EEOC v. R.G. & G.R. Funeral Homes case, it would mean secular employers could use religious belief under the RFRA to defeat LGBT bias claims.

Ultimately, however, it is likely the issue will be reviewed by the U.S. Supreme Court. This is because there is currently a split among the Circuits. The Seventh Circuit Court of Appeals recently followed the EEOC’s interpretation and concluded on April 4, 2017, that discrimination based on sexual orientation is a form of sex discrimination. Hively v Ivy Tech Community College of Indiana. In contrast, the Second Circuit in Anonymous v. Omnicom Grp., Inc. (2017) and Eleventh Circuits in Evans v. Ga. Reg’l Hosp., (2017) concluded that Title VII did not extend to sexual orientation. In any event, this is an issue HR professionals and companies will need to watch.

For more information about complying with federal or Michigan employment discrimination laws, as well as litigating employment discrimination claims, contact employment attorney Jason Shinn.