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Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

Posted on: October 31st, 2018 by Art Leonard No Comments

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

Federal Appeals Court Rules for Transgender Funeral Director in Title VII Discrimination Suit

Posted on: March 11th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman.  The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.

Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.

This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff.  Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII.  Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.

Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.

The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home.  After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.

“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan.  Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”

Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and 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 organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”

“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.

The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.

Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA.  At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners.  The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.

Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff.  The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes.  Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.

District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home.  In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision.  Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.

The 6th Circuit reversed on both points.  As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her.  The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.

More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.

Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace.  Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.

After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct.  “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims.  “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.  This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”

The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.

And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.”  Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well.  Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much!  “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense.  One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision.  The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees.  Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business.  Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.

Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case.  The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.

However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA.  The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”

Rost suggested two ways this would impose a substantial burden.  First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.”  The court did not accept either of these as “substantial within the meaning of RFRA.”

For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII.  Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim.  “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”

The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business.  The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff.  This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage.  Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all.  But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.

As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest.  Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director.  “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore.  “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform.  But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.”  The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”

“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”

The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections.  Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision.  What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so.  This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination.  (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)

Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex.  The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.”  “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore.  “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.”  It was not just about the uniforms.

The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA.  With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA.  Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.

The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight.  Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home.  The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.

Judge Moore was appointed to the court by President Bill Clinton.  The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama.  Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges.  As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.