On August 18, 2016, a federal district court ruled that a Michigan funeral home did not violate Title VII by firing a transgender employee, who was transitioning from male to female, because the employee intended to “dress as a woman” at work. EEOC v. R.G. & G.R. Funeral Homes, Inc., E.D. Mich., No. 14-13710, 8/18/16
The U.S. District Court for the Eastern District of Michigan ruled the funeral home was entitled to a religious exemption under the Religious Freedom Restoration Act (RFRA), because enforcement of Title VII’s prohibitions on sex-stereotyping would impose a substantial burden on the funeral’s homes ability to conduct business in accordance with its owner’s sincerely held religious beliefs. Balancing the parties’ competing interests under the RFRA and Title VII, the EEOC was not able to meet its burden of establishing that its means of enforcement (i.e., requiring the funeral home to allow the employee to dress as a female to express her female gender identity) was the least restrictive means of applying the law.
R.G. & G.R. Harris Funeral Homes, Inc., (the “Funeral Home”) is a closely-held, for-profit corporation, owned and operated by Thomas Rost. The Funeral Home is not affiliated with any church or religion, and its articles of organization do not purport to claim any religious purpose. The Funeral Home’s employees are not required to have any particular religious views, and it serves clients of every religion or no religion at all.
The Funeral Home has an employee dress code. Essentially, men are required to wear a dark business suit, white shirt, and a tie. Women generally are required to wear a business suit that consists of a skirt and business jacket. The Funeral Home administers this dress code based upon the employee’s biological sex.
The Funeral Home hired Anthony Stephens in October 2007. Stephens served as a funeral director for nearly six years under that name. In July 2013 Stephens provided the Funeral Home with a letter detailing a struggle with gender identity disorder and announcing that upon returning from vacation she would “return to work as my true self, Amiee Australia Stephens, in appropriate business attire.” Stephens intended to abide by the dress code for women. Rost testified that he terminated Stephens’s employment because “he wanted to dress like a woman.”
In 2014 the EEOC filed suit on behalf of Stephens, including a claim for discriminatory discharge. In response to the Funeral Home’s motion to dismiss, the Court ruled that transgender status or gender identity are not protected classes under Title VII. However, the EEOC had also alleged the termination was because Stephens did not conform to the Funeral Home’s sex/gender based stereotypes for work clothing. Therefore, the case moved forward under the sex/gender stereotyping theory of sex discrimination.
The Funeral Home offered two defenses. First, it claimed that the enforcement of its sex-specific dress code cannot be impermissible stereotyping under Title VII. The Court rejected this defense but noted the lack of guidance in reconciling older decisions upholding dress codes with the more recent cases involving the sex/gender stereotyping theory of sex discrimination. Second, the Funeral Home argued that requiring it to allow Stephens to dress as a woman violated its rights under RFRA. RFRA was enacted to provide broad protection for religious liberty, and to provide a defense to persons whose religious exercise is substantially burdened by the government.
The Funeral Home was able to establish that compliance with Title VII would substantially burden its exercise of religion. In this regard, Rost testified the Funeral Home’s dress code comports with his religious views. In particular, Rost believes that he “would be violating God’s commands if [he] were to permit one of the [Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [he] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also testified that if he was forced to permit one of his employees to dress inconsistent with his or her biological sex, he “would feel significant pressure to sell the business and give up his life’s calling of ministering to grieving people.” Noting it is not the Court’s role to determine whether “religious beliefs mistaken or insubstantial,” but to determine whether they are an honestly held, the Court found it undisputed that Rost’s beliefs are sincere.
Under RFRA, once a person demonstrates she is entitled to an exemption from the law, in this case Title VII’s prohibition on sex/gender stereotyping, the Government must meet its burden to show that application of the law “to the person” (i) is in the furtherance of a compelling government interest, and (ii) is the least restrictive means of furthering that compelling government interest.
The EEOC failed to establish that the application of Title VII to the Funeral Home, under the facts of the case, is the least restrictive means of furthering the compelling government interest in protecting employees from gender stereotyping in the workplace. According to the Court, the EEOC did not even attempt to explain how requiring the Funeral Home to allow a funeral director, who was born a biological male, to wear a skirt-suit to work meets the” least restrictive” requirement. Additionally, there was no evidence the EEOC had considered other possible accommodations. Because the EEOC did not meet its burden, the Funeral Home received an exemption from Title VII.
The Court noted, as a practical matter, the EEOC conducted the litigation as if gender identity or transgendered status is a protected class under Title VII. However, the Court had already ruled to the contrary, and the termination claim proceeded only under the sex/gender stereotyping theory. According to the Court, if the goal of the sex-stereotyping theory of sex discrimination is to make gender irrelevant with respect to the terms and conditions of employment, insisting that Stephens must be allowed to wear a skirt-suit to work to express her female gender identity does not accomplish that goal. The Court suggested that a gender neutral dress code may be a solution.