U.S. District Judge Sean F. Cox ruled on August 18 that a funeral home that discharged a transgender funeral director because of her intention to dress according to the employer’s dress code for women was not liable for sex discrimination under Title VII of the Civil Rights Act of 1964. The ruling, granting the employer’s motion for summary judgment, stemmed from the court’s conclusion that the employer prevailed on a religious free exercise defense raised under the federal Religious Freedom Restoration Act (RFRA), because the plaintiff in the case, the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, had failed to show that requiring the employer to allow the employee to use the approved female outfit was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping discrimination in the workplace. The case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 U.S. Dist. LEXIS 109716, 2016 WL 4396083 (E.D. Mich.).
Importantly, Judge Cox made clear in his opinion that had the employee, Amiee Stephens, sued the funeral home on her own behalf, the funeral home would not have been able to raise the RFRA religious freedom defense, and she would most likely have won her Title VII case. Within the 6th Circuit (the states of Michigan, Ohio, Kentucky and Tennessee), the controlling circuit precedent states that a RFRA defense may only be raised in a case where “the government” is either the plaintiff or the defendant.
There are similar controlling precedents in the 7th and 9th Circuits, according to the opinion in the 6th Circuit case on which Judge Cox relied, General Conference of Seventh-Day Adventists v. McGill, 617 F.3d 402 (2010). In the 2nd Circuit, which includes New York, there is a contrary precedent by a three- judge panel which has been questioned by a different three-judge panel, so the issue is a bit muddled. The Supreme Court has never made clear whether RFRA is so limited in employment discrimination cases, but in the Hobby Lobby v. Burwell case, in which the Court ruled that business corporations may claim protection from government actions under RFRA, Justice Samuel Alito wrote for the Court in dicta (non-precedential language) that an employer would not be able to rely on RFRA to defend against a Title VII race discrimination charge. He made this statement in response to Justice Ruth Bader Ginsberg’s statement in her dissent that the majority’s approach would endanger the enforcement of Title VII and other anti-discrimination laws. Alito’s statement did not mention any distinction between cases brought by the EEOC and cases brought by individual employees.
Aimee Stephens – then known as Anthony Stephens – was hired by the Harris Funeral Home in October 2007. Stephens was identified as male on the Funeral Home’s employment records. Stephens worked as a funeral director and embalmer for nearly six years under that name. On July 31, 2013, Stephens sent a letter to her boss, Thomas Rost (who owns over 90% of the stock in Harris Funeral Homes, Inc.) and to her co-workers, telling them about her female gender identity and her determination to transition. She wrote, “The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire.” Stephens stated in the letter that eventually she would be undergoing “sex reassignment surgery.”
The Funeral Home has a dress code specifying dark suits for men and “a suit or plain conservative dress” for women. In the letter, of course, Stephens indicated that she would wear “appropriate business attire” as a woman. In response to the letter, Rost fired Stephens on August 15, telling her, according to his deposition testimony, “Anthony, this is not going to work out. And that your services would no longer be needed here.” Stephens testified that her understanding was that the way she proposed to dress was the immediate issue leading to her discharge. (In his opinion, Judge Cox pointed out that there was no discussion in the depositions about other aspects of Stephens’ proposed appearance, such as grooming or hair style.)
Stephens filed a sex discrimination charge with the EEOC, alleging that she was fired due to her sex and gender identity. After investigating the charge, the EEOC concluded that there was “reasonable cause” to believe that Stephens’ “allegations are true.” The EEOC also concluded, as a result of its investigation, that the Funeral Home was discriminating against its female employees because it provided appropriate suits and ties for male employees but required female employees to assume all expenses of complying with the dress code.
After the EEOC concludes an investigation resulting in a finding of “probable cause” without any kind of settlement being achieved, the case can go in either of two directions. The agency can decide to initiate a lawsuit against the employer, or it can notify the employee, in a “right to sue” letter, that the agency will not be bringing a lawsuit but that the employee may do so directly. In 2014 the EEOC had begun an effort to establish that gender identity claims can be litigated under Title VII, and chose this as one of its first cases for direct litigation, so the EEOC filed suit in the U.S. District Court for the Eastern District of Michigan on September 25, 2014.
As expected, the Funeral Home filed a motion to dismiss the case, claiming that gender identity discrimination claims are not covered under Title VII. Responding to the motion, Judge Cox agreed with the Funeral Home that gender identity discrimination claims are not covered, as such, but refused to dismiss the Title VII claim, finding that it was covered by 6th Circuit precedents involving transgender public employees who sued on a theory of “sex stereotyping,” derived from a Supreme Court decision called Price Waterhouse v. Hopkins.
The EEOC’s complaint had presented the court with alternative theories in this case, including sex-stereotyping. If an employer discharges an employee for failing to conform to the employer’s stereotyped views as to how employees of a particular sex should dress, that may violate the ban on sex discrimination unless the employer can prove that dressing in a particular way is a bona fide occupational qualification necessary to perform the essential functions of the job. Such potential employer defenses are generally irrelevant in deciding a motion to dismiss a claim, which is based entirely on whether the allegations in the plaintiff’s complaint are sufficient to “state a claim” under the statute, so Cox’s decision denying the motion to dismiss did not address this potential defense. The Funeral Home did not mention any religious freedom claim under RFRA in its motion to dismiss, either, and it would have been irrelevant at that point.
After the motion to dismiss was denied, the case proceeded to discovery, during which the attorneys conducted depositions of the parties. After discovery, the EEOC and the Funeral Home filed motions for summary judgment, contending that there were no contested facts requiring trial and the court could rule as a matter of law. After the Funeral Home had lost its motion to dismiss, the Funeral Home got new legal representation from the Alliance Defending Freedom (ADF), a so-called Christian public interest law firm, which raised for the first time the claim that the Funeral Home was privileged to discharge Stephens regardless of Title VII because Mr. Rost’s objection to her proposed mode of dress was based on his religious views against transgender status.
Rost asserted his belief that gender and biological sex are created by God and immutable. During discovery ADF presented evidence, not questioned by the EEOC, that this was Rost’s sincere religious belief and, furthermore, that he had consistently expressed that he sought to operate this family-owned corporate business in line with his religious beliefs. There is relevant language about this on the Funeral Home’s website and in its literature.
Judge Cox’s August 18 ruling was presented in three parts. In the first, he found that the Funeral Home had violated Title VII by discharging Stephens over the anticipated dress code violation. In the view of Rost, Stephens was immutably a man, regardless of what Stephens asserted about her gender identity, and thus was required to dress as a man consistent with the business’s dress code. There are many precedents under Title VII upholding the right of employers to adopt reasonable dress codes that do not impose greater burdens on employees of one or the other sex. The Funeral Home relied on these precedents, especially one from the 9th Circuit upholding the right of an employer to require women to wear makeup. Judge Cox noted, however, that a 6th Circuit case had specifically differed with that 9th Circuit case, and had rejected the idea that a dress code would necessarily insulate an employer from a charge of sex stereotyping. Referring to the 6th Circuit’s ruling in an early gender identity sex stereotyping case, Judge Cox wrote, “It appears unlikely that the Smith court would allow an employer like the employer in Jesperson [the 9th Circuit make-up case] to avoid liability for a Title VII sex-stereotyping claim simply by virtue of having put its gender-based stereotypes into a formal policy. Accordingly. . . the Court rejects the Funeral Home’s sex-specific dress code defense to the Title VII sex-stereotyping claim asserted on behalf of Stephens [by the EEOC] in this case.”
However, in the second part of his opinion, Judge Cox found that the employer should prevail based on a RFRA defense. The Funeral Home argued that requiring it to allow a funeral director identified as male in its employment records to wear clothing specified for a woman presented an unacceptable burden on Rost’s right to operate his business consistent with his religious views. Assuming the sincerity of Rost’s religious belief, which EEOC did not challenge, Cox found that the EEOC had failed to show that requiring the Funeral Home to let Stephens dress as a woman was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping in the workplace.
Indeed, Cox pointed out, the EEOC’s own theory of the Title VII case was that requiring a particular mode of dress based on gender was a form of sex stereotyping, so its argument that the Funeral Home had to let Stephens dress as a woman under the employer’s dress code in order to achieve the EEOC’s compelling interest in opposing sex-stereotyping was contradictory. Cox noted that the EEOC had not presented any evidence of an attempt to negotiate with the Funeral Home about some sort of gender-neutral dress code that might be acceptable to both Stephens and Rost, and there was deposition testimony by Rost suggesting that a pants suit might be an acceptable compromise. The real problem, from this point of view, was Rost’s insistence that Stephens could not wear a skirt or dress.
Thus, the court concluded that the Funeral Home had a valid defense to the Title VII claim under RFRA, and granted summary judgment to the Funeral Home on that claim.
However, at the end of this part of the decision, responding to an argument by the EEOC that this ruling would severely undermine enforcement of Title VII, Cox pointed out that under 6th Circuit precedent the Funeral Home would not have been able to raise the RFRA defense if Stephens had filed suit against it directly. “In the vast majority of Title VII employment discrimination cases,” he wrote, “the case is brought by the employee, not the EEOC. Accordingly, at least in the Sixth and Seventh Circuits, it appears that there cannot be a RFRA defense in a Title VII case brought by an employee against a private employer because that would be a case between private parties.”
The 6th Circuit’s opinion is based on a close reading of RFRA, which can be construed to extend only to cases in which the government is either the plaintiff or the defendant. That reading is controversial, but so far it seems to have been accepted in several of the circuits. Thus, although in this case the Funeral Home was able to raise a RFRA defense because the lawsuit was brought by the EEOC, in the vast majority of cases, such a defense would be unavailable to it.
Since Judge Cox had rejected all of the other defenses offered by the Funeral Home under Title VII, consequently, it seems that Stephens would have won on the motion for summary judgment had she sued directly, leaving RFRA out of the picture.
In the last part of the opinion, Judge Cox granted summary judgment to the Funeral Home on the EEOC’s claim that the dress code violated Title VII because the employer provided suits for men but required women to purchase their own work clothes without subsidy. He found that this claim did not relate to the issues in Stephens’ complaint, so it should have been dealt with in a separate lawsuit. In any event, it seems that the Funeral Home had reacted to the EEOC’s investigation by changing its dress policy to provide financial assistance to female employees, so this issue might be moot.
Judge Cox was appointed to the court by President George W. Bush. He was previously a Michigan state court judge and before that had been a partner in a Michigan law firm. He is the older brother of former Michigan Attorney General Mike Cox.
Early press coverage of the ruling failed to note Judge Cox’s explanation that the RFRA defense could be raised by the employer only in a case brought by the government, thus making it sound, incorrectly, as if Cox had ruled that employers with religious objections to transgender employees are exempt from any non-discrimination obligation under Title VII. Cox made clear that, at least in the 6th Circuit, the RFRA exemption is only available in an employment discrimination case as a defense to a lawsuit by the government.