Federal Court Permits Employer to Fire Transgender Employee

Posted by on Sep 6, 2016 in Gender Discrimination, Supreme Court, Title VII

In 2014, the Supreme Court of the United States ruled in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that closely-held corporations are exempt from laws to which its owners object on religious grounds, if there is a less restrictive means of furthering the law’s interest. In Burwell, David and Barbara Green owned a family business, Hobby Lobby, and objected to provisions within the Patient Protection and Affordable Care Act (“PPACA”), more commonly known as the “Affordable Care Act” or “Obamacare,” that would have required them to pay for employee insurance coverage that provided access to contraceptives. This controversial decision was hailed by some as a victory for religious freedom, and simultaneously condemned by others as expanding previous Supreme Court decisions that treat corporations like people, notably, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

More recently, the Honorable Sean F. Cox, U.S.D.J. of the United States District Court for the Eastern District of Michigan, ruled on the defendant’s motion for summary judgment in Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016), holding that the Supreme Court’s decision in Burwell meant a closely-held corporation could fire a transgender employee who, while transitioning from male to female, wished to begin dressing as a female. Notably, Judge Cox interpreted the Religious Freedom Restoration Act of 1993 (“RFRA”), in accordance with the Burwell decision, to mean that the sincerely held religious beliefs of a corporation provide an exemption to state and federal law unless the government can show a need to advance a compelling interest and that the requested means is the least-restrictive method of protecting such an interest. Accordingly, Judge Cox held that employers could terminate employees for the reasons described below.

In Harris, the EEOC argued that an employee’s right to not be discriminated against on the basis of transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964, which prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Judge Cox stated that enforcement of Title VII would impose a substantial burden on the corporation’s ability to conduct business in accordance with its sincerely held religious beliefs, in violation of RFRA, and the EEOC’s demand of allowing the employee to wear women’s attire was not the least-restrictive method of protecting the employee’s interest in not being discriminated against.

Notably, Judge Cox pointed out the employer’s mission statement, which points to “its highest priority” as “honor[ing] God in all that we do as a company and as individuals,” as evidence of their sincerely held religious beliefs. In contrast, Judge Cox noted the employee’s desire to dress “in a stereotypical feminine manner (wearing a skirt-suit),” which would allow for gender expression, and that the EEOC refused to consider whether the employer would be willing to accept gender-neutral attire that still allowed for gender expression. As a suggestion, Judge Cox proposed a “dark-colored suit, consisting of matching business jacket and pants, but without a neck tie.”

Given Citizens United, Burwell, and now Harris, there appears to be a trend of federal case law indicating that corporations may be treated like individuals, and that the religious beliefs of a closely-held corporation’s owners can override federal protections against discrimination. As it appears likely that the EEOC will appeal this decision to the United States Court of Appeals for the Sixth Circuit, both employers and employees should continue to track its progress through the legal system.

Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Silencing Employees During An Ongoing Investigation May Violate Title VII of the 1964 Civil Rights Act.

Posted by on Sep 7, 2012 in Title VII

by Rashmee Sinha, Esquire (email / link to bio)

The standard protocol among most employers when investigating a complaint of discrimination or harassment in the workplace is to instruct employees not to discuss the matter for obvious reasons, i.e. limit exposure to liability, and prevent attempts to taint the investigation process by putting a lid on the gossip mill so that employees are not led to modify or recant their statements. However, based on a recent letter from the United States Equal Employment Opportunity Commission, policies that warn employees that they could be subject to discipline or discharge for discussing an ongoing internal investigation may be unlawful. The EEOC claimed that the policy is illegal under Title VII, which prohibits workplace harassment and discrimination on the basis of, inter alia race, sex, and religious belief.

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