SEAN F. COX, District Judge.
The United States Equal Employment Opportunity Commission (the "EEOC") brought this employment discrimination action against R.G. & G.R. Harris Funeral Home, Inc. ("the Funeral Home") asserting two claims against the Funeral Home. First, it asserts a Title VII claim on behalf of the Funeral Home's former Funeral Director/Embalmer Stephens, who is transgender and is transitioning from male to female. The EEOC asserts that the Funeral Home's decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgender, because of Stephens's transition from male to female, and/or because Stephens did not conform to the defendant employer's sex- or gender-based preferences, expectations, or stereotypes. Second, the EEOC asserts that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex. This second claim appears to be brought on behalf of an unidentified class of female employees of the Funeral Home.
The Funeral Home filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). The parties fully briefed the issues and the Court heard oral argument on April 16, 2015. For the reasons that follow, the Court shall DENY the Funeral Home's Motion to Dismiss.
The pending motion does not challenge the EEOC's claim based on the alleged disparate treatment in relation to a clothing allowance and, therefore, that claim remains.
This Court also concludes that the EEOC's complaint states a Title VII claim against the Funeral Home on behalf of Stephens. As explained below, transgender status is not a protected class under Title VII. Thus, if the EEOC's complaint had alleged that the Funeral Home fired Stephens based solely upon Stephens's status as a transgender person, then this Court would agree with the Funeral Home that the EEOC's complaint fails to state a claim under Title VII. But the EEOC's complaint also asserts that the Funeral Home fired Stephens "because Stephens did not conform to the [Funeral Home's] sex- or gender-based preferences, expectations, or stereotypes." (Compl. at ¶ 15). And binding Sixth Circuit precedent establishes that any person without regard to labels such as transgender can assert a sex-stereotyping genderdiscrimination claim under Title VII, under a Price Waterhouse theory, if that person's failure to conform to sex stereotypes was the driving force behind the termination. This Court therefore concludes that the EEOC's complaint states a claim as to Stephens's termination.
Finally, the remaining arguments in the Funeral Home's motion are without merit or are improperly raised in a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6).
On September 25, 2014, the EEOC filed this action against the Funeral Home. The EEOC's complaint describes the nature of this action as follows:
(Compl. at 1). The EEOC.'s complaint alleges as follows in its "Statement of Facts" section:
(Id. at 3-4). The EEOC's complaint alleges as follows in its "Statement of Claims" section:
(Id. at 4-5) (emphasis added). The prayer for relief in the EEOC's complaint states as follows:
Wherefore, the Commission respectfully requests that this Court:
(Id. at 6-8).
On November 19, 2014, the Funeral Home filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). The motion has been fully briefed and the Court heard oral argument on April 16, 2015.
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff and accept all the well-pleaded factual allegations as true. Evans-Marshall v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005). Although a heightened fact pleading of specifics is not required, the plaintiff must bring forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The EEOC's complaint in this action asserts two different types of claims against the Funeral Home.
First, the EEOC asserts that the Funeral Home's decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgender, because of Stephens's transition from male to female, and/or because Stephens did not conform to the Defendant Employer's sex- or gender-based preferences, expectations, or stereotypes.
Second, the EEOC asserts that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by "providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex." (Compl. at ¶ 17). This second type of claim appears to be brought on behalf of an unidentified class of female employees of the Funeral Home.
Although the Funeral Home's motion is titled a "Motion to Dismiss" and asks the Court to dismiss the EEOC's "complaint," (Def.'s Motion at 1), the motion does not include any challenges to the EEOC's second claim. As such, that claim would remain even if the Court found the Funeral Home's challenges to the first claim to have merit.
Again, as to its first claim, the EEOC asserts that the Funeral Home's decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgender, because of Stephens's transition from male to female, and/or because Stephens did not conform to the Defendant Employer's sex- or gender-based preferences, expectations, or stereotypes.
If the EEOC's complaint had alleged that the Funeral Home fired Stephens based solely upon Stephens's status as a transgender person, then this Court would agree with the Funeral Home that the EEOC's complaint would fail to state a claim under Title VII. That is because, like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII. See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Stating that "sexual orientation is not a prohibited basis for discriminatory acts under Title VII."); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (Concluding that "transsexuals are not a protected class under Title VII", rejecting the plaintiff's argument for "a more expansive interpretation of sex that would include transsexuals as a protected class," and noting that "[e]ven the Sixth Circuit, which extended protection to transsexuals under the Price Waterhouse theory" "explained that an individual's status as a transsexual should be irrelevant to the availability of Title VII protection.").
But the EEOC's complaint does not allege that the Funeral Home fired Stephens based solely upon Stephens's status as a transgender person. The EEOC's complaint also asserts that the Funeral Home fired Stephens "because Stephens did not conform to the [Funeral Home's] sex- or gender-based preferences, expectations, or stereotypes." (Compl. at ¶ 15).
In its brief, however, the EEOC appears to seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class. (Pl.'s Br. at 8) (Arguing that the EEOC's "complaint states a claim of sex discrimination under Title VII because Stephens is transgender and [the Funeral Home] fired her for that reason."). There is no Sixth Circuit or Supreme Court authority to support the EEOC's position that transgender status is a protected class under Title VII.
Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless "protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender." Myers v. Cuyahoga Cnty, Ohio, 183 F. A'ppx 510, (6th Cir. 2006) (Citing Smith v. City Of Salem, 378 F.3d 566 (6th Cir. 2004) and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)).
The seminal Sixth Circuit case on this issue is Smith v. City of Salem. The plaintiff in Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents. After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work. Smith, 378 F.3d at 568. Smith's co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not "masculine enough." Id. Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include "complete physical transformation from male to female." Id. The news was not well-received by Smith's employer. Smith's superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological evaluations in the hope that he would quit.
Smith ultimately filed suit and his claims against the city included a Title VII claim of sex stereotyping, in violation of the Supreme Court's pronouncements in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The district court dismissed Smith's sex-stereotyping claim under Title VII but the Sixth Circuit reversed.
The Sixth Circuit began its analysis by looking at the Supreme Court's decision in Price Waterhouse:
Smith, 378 F.3d at 571-72. The Smith court further explained that:
Id. The Smith court concluded that Smith had stated a Title VII claim for relief, pursuant to Price Waterhouse's prohibition of sex stereotyping, based on his gender non-conforming behavior and appearance. The court noted that:
Id. at 572.
The Smith court explained that "[h]aving alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants' actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination." Id.
The Smith court went on to explain that the district court erred in relying on "a series of pre-Price Waterhouse cases from other federal appellate courts holding that transsexuals, as a class, are not entitled to Title VII protection because `Congress had a narrow view of sex in mind' and `never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex.'" Id. (citations omitted). In that "earlier jurisprudence, male-to-female transsexuals (who were the plaintiffs in Ulane, Sommers, and Holloway) as biological males whose outward behavior and emotional identity did not conform to socially-prescribed expectations of masculinity were denied Title VII protection by courts because they were considered victims of `gender' rather than `sex' discrimination." Smith, 378 F.3d at 573.
The Smith court held that the approach in those cases, and the district court's position below, "has been eviscerated
Thus, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex." Smith, 378 F.3d at 574 (emphasis added).
The Sixth Circuit then rejected the position that, because a person is transgender, that person is somehow less worthy of protection under Title VII as to a sex-stereotyping claim:
Smith, 378 F.3d at 574-75. "Accordingly, we hold that Smith has stated a claim for relief pursuant to Title VII's prohibition of sex discrimination." Id.
In Barnes v. City of Cincinnati, the Sixth Circuit concluded that the transsexual plaintiff in that case had also sufficiently pleaded a Title VII sex discrimination claim under a Price Waterhouse theory. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). The plaintiff in that case, Barnes, was employed by the Cincinnati Police Department. Barnes "was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty. Barnes had a reputation throughout the police department as a homosexual, bisexual or crossdresser." Id. at 733.
Following a promotion to sergeant, Barnes was assigned to District One for a probationary period. During that probationary period, Barnes "was living off-duty as a woman, had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his face on some occasions." Id. at 734.
After Barnes was demoted from sergeant, he filed suit and asserted a claim under Title VII. After a jury verdict in Barnes's favor, the City appealed. Among other things, the City asserted that Barnes did not sufficiently plead or prove a sex discrimination claim under Title VII. The Sixth Circuit rejected that argument, explaining as follows:
Barnes, 401 F.3d at 737.
Accordingly, Smith and Barnes establish that a transgender person just like anyone else can bring a sex-stereotyping gender-discrimination claim under Title VII under a Price Waterhouse theory.
Here, the EEOC's complaint alleges that Stephens informed the Funeral Home that Stephens "was undergoing a gender transition from male to female and intended to dress in appropriate business attire at work as a woman from then on," and that the Funeral Home responded by firing Stephens and stating that what Stephens "was `proposing to do' was unacceptable." (Compl. at ¶¶ 10 & 11). The complaint further alleges that the Funeral Home's "decision to fire Stephens was motivated by sex-based considerations," and that the Funeral Home fired Stephens because Stephens "did not conform to the [Funeral Home's] sex- or gender-based preferences, expectations, or stereotypes." (Compl. at ¶ 15).
This Court concludes that, having alleged that Stephens's failure to conform to sex stereotypes was the driving force behind the Funeral Home's decision to fire Stephens, the EEOC has sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.
The Funeral Home's Motion to Dismiss makes numerous arguments. As stated above, this Court concludes that the EEOC has sufficiently pleaded a Title VII claim on behalf of Stephens. Below, the Court addresses challenges made by the Funeral Home that are not encompassed in the above analysis.
In the pending motion, the Funeral Home asserts that "[t]o the extent the EEOC's claim is that [Stephens] was terminated due to his gender identity disorder, the claim must be dismissed." (Def.'s Br. at 11). In making this argument, the Funeral Home also asserts that Gender Identity Disorder is not a protected class under Title VII. (Id. at 3).
The EEOC's complaint never uses the term Gender Identity Disorder; nor does it assert that Gender Identity Disorder is a protected class under Title VII. Moreover, to the extent that the EEOC asks this Court to rule that transgender status is a protected class under Title VII, this Court declines to do so, as set forth in Section II. A. of this Opinion.
The Funeral Home also asserts that "Title VII does not extend its protections to `gender identity disorder'" and then takes the position that the EEOC's prosecution of this case is an ultra vires act. The Court rejects this argument. As stated above, the Court concludes that, having alleged that Stephens's failure to conform to sex stereotypes was the driving force behind the Funeral Home's decision to fire Stephens, the EEOC has sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.
In its motion, the Funeral Home also asserts that "the Complainant [Stephens] was terminated for refusing to comply with the employer's dress and grooming code" and therefore the claim fails. (Def.'s Br. at 19). It then cites cases that involved plaintiffs who filed suit alleging that their employer's dress codes violated Title VII.
Here, however, the EEOC's complaint does not assert any claims based upon a dress code and it does not contain any allegations as to a dress code at the Funeral Home.
To the extent that the Funeral Home seeks to proffer a defense to the Title VII claim asserted on behalf of Stephen based upon its alleged dress code, this Court agrees with the EEOC that such a defense has no place in the context of a motion brought pursuant to Fed. R. Civ. P. 12(b)(6):
(Pl.'s Br. at 14).
For the reasons set forth above, IT IS ORDERED that Defendant's Motion to Dismiss is DENIED.
IT IS SO ORDERED.
