Last year, we covered Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., a 2018 Sixth Circuit Court of Appeals case holding that discrimination on the basis of transgender and transitioning status violates Title VII of the Civil Rights Act. As readers may recall, Stephens involved a funeral director “assigned male at birth” who notified her employer that she planned to transition to and present as a woman. The funeral home’s owner fired the funeral director because she “wanted to dress as a woman.” The Court of Appeals held that discrimination because of transgender or transitioning status is necessarily gender discrimination, which violates federal law.

The story does not end there, however. The defendant funeral home requested leave to appeal the case to the U.S. Supreme Court, which was granted. Notably, although the Sixth Circuit Court of Appeals in Stephens created a new protected class (transgender and transitioning workers), other federal appellate courts have reached the opposite conclusion. (The Sixth Circuit’s rulings only bind lower federal courts in Michigan, Ohio, Kentucky and Tennessee.) Additionally, the Justice Department continues to take the position that federal employment law does not afford protection based on transgender status. By accepting the appeal, the Supreme Court could resolve the question once and for all.

The Stephens case is scheduled for oral argument today.

Considering the legal uncertainty, employers would be well advised to adopt a cautious approach relative to this issue and avoid action that could be construed as discriminating against transgender or transitioning employees. Please stay tuned for future legal updates and contact Wright Beamer at (248) 477-6300 for assistance with your business and employment law needs.