A federal judge in Michigan has ruled in favor, on religious grounds, of a suburban Detroit funeral home that fired a transgender employee who was transitioning from male to female.
The case is one of the first two lawsuits that the U.S. Equal Opportunity Commission (“EEOC”) has filed alleging that bias against transgender employees constitutes illegal sex discrimination.
In granting the employer’s motion for summary judgment, the U.S. District Court concluded that the employer met its burden in demonstrating that it is exempt from Title VII under the Religious Freedom Restoration Act (“RFRA”).
The EEOC’s lawsuit alleged that G.R. Harris Funeral Homes, Inc. discriminated based on sex against the transgender funeral director in violation of Title VII of the Civil Rights Act of 1964 by firing her “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”
Though on its face Title VII does not ban discrimination against transgender individuals or include gender identity as a protected class, several courts have concluded that the prohibition against sex discrimination includes gender stereotyping—and the Supreme Court has held that “gender must be irrelevant to employment decisions.”
The EEOC’s position is that discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned is illegal discrimination because of sex since it imposes expectations or stereotypes regarding how someone ‘born’ to that sex should live or look.
Background
While the owner of Harris Funeral Homes, Thomas Rost, is a devout Christian, the corporation is not affiliated with or part of any church and its articles of incorporation do not avow any religious purpose. The homes serve clients of all faiths and their employees are not required to hold any religious view.
The company’s website contains passages of scripture and Rost has placed Christian devotional materials and small cards containing Bible verses in the funeral homes. The court observed that it was undisputed that Rost sincerely believes that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.”
The funeral homes maintain a dress code for employees, requiring men to wear suits and ties and women to wear skirt suits. After male employee Andrew Stephens began transitioning to female employee Aimee Stephens, she began wearing skirts-suits and consequently, was fired.
Rost admits that Stephens was fired because Stephens intended to “dress as a woman.”
Court Decision
The funeral home defended its termination decision on the grounds that enforcement of a sex-specific dress code is not impermissible sex stereotyping under Title VII. In addition, on the heels of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., they argued that the RFRA prohibits the EEOC from applying Title VII to force the funeral home to violate their sincerely held religious beliefs. In Hobby Lobby, the Supreme Court granted the craft-store giant a religious exemption from providing its employees with insurance coverage for contraceptives.
The court rejected the funeral home’s first defense, noting recent precedent “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.” Therefore, it ordinarily is considered illegal for an employer to terminate an employee for wearing clothing viewed as not gender-appropriate.
Religious Freedom is Paramount
However, the court agreed that the funeral home was exempt from Title VII because of Rost’s sincerely held Christian beliefs under the RFRA, which requires religious exemptions even from generally applicable federal statutes.
The RFRA provides that if an individual (and here, a corporation is deemed an individual) holds a sincere religious belief and a federal law substantially burdens the person’s ability to act consistently with that belief, the government must grant an exemption from the law unless (1) the law serves a compelling government interest; and (2) denying the exemption is the least restrictive means of serving that interest.
Here, it was undisputed that Rost’s beliefs were sincerely held, and the court determined that the funeral home met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely held religious beliefs.
Having found that enforcement of Title VII would be a substantial burden to its religious exercise, the burden shifted to the EEOC to prove that: (1) application of the burden is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.
While the judge agreed that protecting employees from gender stereotyping in the workplace is a compelling governmental interest, he concluded that EEOC had failed to show that enforcement of Title VII in this instance is the least restrictive means of protecting employees from gender stereotyping. In fact, the court suggested:
If the compelling interest is truly in eliminating gender stereotypes, the Court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here.
Bottom Line
This case is just the beginning of what is likely to be a flood of cases revolving around whether Title VII’s ban on sex discrimination applies to sexual orientation discrimination, and whether the religious exemption under the RFRA will provide a valid defense. EEOC has already indicated that they will appeal this decision, and more litigation from the agency is already in the works.
As the saying goes (in a slightly cleaned-up way), this stuff is about to get real.