Supreme Court to take up transgender job discrimination case from Michigan

Melissa Nann Burke
The Detroit News
Aimee Stephens, at right, and wife Donna. Stephens, who is transgender, has argued that her firing by a funeral home outside Detroit violated federal law barring sex discrimination in the workplace.

Washington — The U.S. Supreme Court will decide next term whether federal civil rights law prohibits discrimination against transgender people when it takes up a Michigan case involving R.G. and G.R. Harris Funeral Homes.

The lawsuit involves Aimee Stephens, 58, of Metro Detroit, a funeral home director who was fired in 2013 after disclosing to her boss that she was transitioning from male to female and would begin following the home’s dress code requirements for women.

On behalf of Stephens, the federal Equal Employment Opportunity Commission in 2014 sued Harris Homes, which operates three funeral homes in southeast Michigan and where Stephens had worked for nearly six years. 

The U.S. Court of Appeals for the 6th Circuit ruled last year that her firing constituted sex discrimination under federal law.

"The stakes are very high because in a very, very large number of states around the country there is no law that explicitly protects people against discrimination on a basis of their sexual orientation or identity. Michigan is one of those states," said Sam Bagenstos, who teaches constitutional law at the University of Michigan Law School.

"We have a dispute in Michigan over whether the Elliott-Larsen Civil Rights Act, which prohibits sex discrimination, is best read to also prohibit discrimination against gays and lesbians and transgender individuals. That very much is a dispute that parallels the dispute the court’s going to decide here."

The funeral home, which asked the high court to hear the case, argues that the 6th Circuit decision rewrites federal law by replacing "sex” with “gender identity" and "threatens freedom of conscience." 

The funeral home contends that nondiscrimination statutes interpreted in similar ways would have the effect of, for example, forcing employers to pay for or doctors to participate in surgical efforts to alter sex "in violation of their deeply held beliefs," attorneys wrote in their petition to the justices. 

Caledonia attorney John Bursch, the former Michigan solicitor general, represents the funeral home and its owner, Thomas Rost.

Bursch said when Congress prohibited sex discrimination in 1964 it didn’t intend to address gender identity “in any way, shape or form.”

Attorney John Bursch is former Michigan solicitor general

"Businesses always have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies," said Bursch, vice president of appellate advocacy and senior counsel for the Alliance Defending Freedom.

"The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

What led to firing

Harris Homes hired Stephens in October 2007 when she was living and presenting as a man, Anthony Stephens.

Stephens was working as a funeral director and embalmer at the company's location in Garden City in July 2013 when she told Rost that she identified as a woman and planned to wear women's clothing. 

Rost, described in court records as a "devout Christian," fired Stephens about two weeks later. He believed he “would be violating God’s commands” if a male employee of Harris Homes presented himself as a woman while representing the company.

He offered Stephens a severance package, which she refused, according to court records. 

"I brought this lawsuit in part to extend that support to all transgender people," Stephens wrote in a blog entry last fall.

"No one should be fired because of who they are. I hope the Supreme Court sees the same." 

The Supreme Court will decide whether federal civil rights law prohibits discrimination against transgender people when it takes up the case of Aimee Stephens of Metro Detroit.

Rost stressed the importance of employees, especially funeral directors, abiding by the company dress code, which he said ensures employees "blend into the background" as grieving families focus on their loss.

“Funeral directors are the face of Harris Funeral Homes. They are our primary point of contact with grieving families, their guests and the communities that we serve," Rost told reporters on a Monday call.

"Employees are free to dress as they wish on their own time. We are only asking for the freedom to hold our employees accountable to follow dress code during work hours."

Rost insisted his business followed federal law but said the government punished him "simply because we sought to prioritize the best interests of those who are grieving."

He noted the EEOC is seeking back pay and punitive damages on behalf of Stephens. 

"We could be forced to pay hundreds of thousands of dollars. Few small businesses can survive the type of loss," Rost said. 

ACLU: This is sex discrimination

John A. Knight, lead attorney for Stephens, said she was so valued by her co-workers that a few had requested she provide funeral services for their family members, "clearly showing how much they trusted her work."  

"But when she was going to be continuing to do that job as a woman, she lost her job. That is a classic case of sex discrimination, and we are confident the court will see that," said Knight, a senior staff attorney for the American Civil Liberties Union. 

"For better or worse, it is a major case in which we expect the Trump administration will argue — as they have done in the brief they filed for the EEOC — that these protections do not exist and should be taken away."

Knight said most people believe and want Americans to be protected from discrimination.

"People think it’s wrong to fire someone because they’re transgender or bisexual or gay or lesbian, and that’s what the Trump administration is going to ask the court to do," he said. 

"That is a scary proposition, and the implications are vast and really have a huge human cost."

The justices also said Monday they would hear cases involving people who claim they were fired because of their sexual orientation. The cases will be argued this fall, with decisions published by June 2020 in the middle of the presidential election campaign.

At issue in all three cases is whether Title VII of the federal Civil Rights Act of 1964, which prohibits sex discrimination, protects LGBT people from workplace discrimination.

Title VII does not specifically mention sexual orientation or transgender status, but federal appeals courts in Chicago and New York have ruled recently that gay and lesbian employees are entitled to protection from discrimination.

Stephens' case will be argued separately from the other two lawsuits, which allege discrimination based on sexual orientation. 

Is this 'gender stereotyping'?

In Stephens' case, the justices said they would consider whether Title VII bars discrimination against transgender people based on either their transgender status or sex stereotyping under the High Court’s 1989 decision in Price Waterhouse v. Hopkins.

That case involved a woman who claimed she was passed over for partner because management considered her too "masculine." The justices ruled that such “gender stereotyping” claims were actionable under Title VII.

"In the Price Waterhouse decision, the court recognized that, if it’s sex discrimination, it’s going to include things like discrimination based on the way someone expresses their gender," Knight said. 

"So, courts have found it easy to see that when someone is fired because they’re transgender, then they’re acting on the basis of sex stereotypes."  

Stephens won in the 6th Circuit under both questions. The panel found that Stephens was fired because of her failure to conform to sex stereotypes — a violation of Title VII.

The 6th Circuit also ruled that discrimination on the basis of transgender and transitioning status "is necessarily discrimination on the basis of sex." 

"Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no," the judges wrote.

"This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens."

While the Obama administration had supported treating LGBT discrimination claims as sex discrimination, the Justice Department under President Donald Trump has argued that Title VII was not intended to provide protections to gay or transgender workers.

President Donald Trump has appointed two conservative justices, Neil Gorsuch and Brett Kavanaugh. 

Both Gorsuch and Kavanaugh tend to favor the positions of employers in employment discrimination cases, but there's not much to draw from in their records to speculate on how they would approach these kinds of cases, Bagenstos said.

The High Court said Monday it will also hear a case in which a federal appeals court in New York ruled in favor of a gay skydiving instructor who claimed he was fired because of his sexual orientation.

The other case is from Georgia, where the federal appeals court ruled against a gay employee of Clayton County, in the Atlanta suburbs.

Associated Press contributed.