Nemeth Bonnette Brouwer Employment Blog

In both cases, the courts interpreted Title VII’s prohibitive language, which states:

[I]t shall be an unlawful employment practice for an employer – to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex. 

In EEOC v. Harris, a funeral home terminated a male funeral director, Stephens, who was transitioning to a female. While Stephens was willing to comply with the required dress code for women (a skirt and business jacket) during and upon completion of the transition, the funeral home would not allow her to do so, citing religious beliefs.  The Sixth Circuit reasoned that discrimination on the basis of transgender status necessarily was because of sex. 

Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be.  By the same token, an employer need not discriminate based on a trait common to all men or women to violate Title VII.  After all, a subset of both women and men decline to wear dresses or make up, but discrimination against any woman on this basis would constitute sex discrimination…    

In addition, the Court said that to fire a person based on transgender status and not be motivated at least in part by that person’s sex was “analytically impossible.”  To illustrate this point, the Court asked whether Stephens would have been terminated had she been a woman seeking to comply with the women’s dress code.  Of course, the Court explained the answer was no, confirming that sex was a consideration for the termination decision. 

The Court also observed that transgender discrimination necessarily results in prohibited sex stereotyping, because the transgendered person’s behavior, by definition, does not conform to that person’s sex/gender. The Sixth Circuit determined that the funeral home’s sex-specific dress code did not preclude liability if the Funeral Home’s termination of Stephens was based on sex stereotypes, i. e., Stephens did not conform to the Funeral Home’s stereotyped belief  about how a man should look and behave.   

Lastly, the Court held the Funeral Home’s religious beliefs did not override the EEOC’s compelling interests in combating discrimination and sex stereotypes. 

In Zarda v. Altitude Express, a gay male skydiver instructor was terminated after revealing his sexual orientation to a female client in order to avoid awkwardness during a jump, when they would be strapped tightly together.

In concluding that Zarda was unlawfully terminated under Title VII for his sexual orientation, the Second Circuit, as did the Sixth Circuit, determined that the adverse employment was because of sex.  The Court first said that, in order to define a person’s sexual orientation, you had to do so by identifying that person’s sex. And because of that, sexual orientation is a function of sex.  Additionally, the Court stated, “[S]exual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.  Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

The Zarda court, again similar to the Harris Court, also addressed gender stereotyping. The Second Circuit reasoned that “[S]exual orientation discrimination is almost invariably rooted in stereotypes about men and women” and how they should conform to stereotypes about how men and women should behave.  Ultimately, the Court held such discrimination based on “assumptions about the gender to which the employees can or should be attracted” was unlawful under Title VII.

The Second Circuit also determined that it is unlawful to terminate a gay man’s employment based on the belief that he should not be attracted to other men (associational discrimination).  The Zarda Court stated that an employer could not discriminate against employees for associating with persons of the same sex. “[S]exual orientation discrimination, which is based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex, constitutes discrimination ‘because of sex.’”

EEOC v. Harris and Zarda v. Altitude Express, as well as the EEOC’s position on Title VII (transgender and sexual orientation are protected)  and the Seventh Circuit’s 2017 decision in Hively v. Ivy Tech Cmty. College, 853 F.3d 339 (7^th Cir. 2017) serve as important lessons for employers.  Employers cannot discriminate against applicants/employees based on  transgender status or sexual orientation. While these issues may one day be decided by the United States Supreme Court, for today the trend is for Title VII to provide broader protections to broader classifications of employees.  And unless you, as the employer want to be the one fighting the issue before the Supreme Court, compliance is the best course of action.   

As a post-script, on March 23, 2018, the Trump administration announced a policy to ban most transgenders from serving in the military.  The Pentagon has stated that it will continue to follow federal law and accept and retain transgender members.  The funeral home in Zarda has not yet indicated whether it will appeal the Sixth Circuit’s transgender decision to the United States Supreme Court.  Altitude Express indicated it will not be appealing the Second Circuit opinion relating to sexual orientation.