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Second Round of Briefing in LGBT Title VII Cases Before the Supreme Court Completed During August

Posted on: September 7th, 2019 by Art Leonard No Comments

On October 8, the second day of hearings in the Supreme Court’s October 2019 Term, the Court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express, Inc. v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits on the question whether sexual orientation discrimination claims are actionable as sex discrimination under Title VII of the Civil Rights Act of 1964, and in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, an appeal from the 6th Circuit on the question whether gender identity discrimination claims are actionable as sex discrimination under Title VII.  The Court consolidated the two sexual orientation discrimination cases, in which the plaintiff-employee is appealing in Bostock and the defendant-employer is appealing in Altitude Express, for a single argument of one hour.  The argument in Harris Funeral Homes, in which the employer is appealing, will be argued next.  Transcripts of the arguments will be posted on the Supreme Court’s website shortly after each argument has concluded (usually within an hour or two), and links to audio recordings of the arguments will be made available on the Court’s website later in the week.

Harris Funeral Homes presents an unusual situation; the victorious party in the 6th Circuit Court of Appeals, the Equal Employment Opportunity Commission (EEOC), is represented in the Supreme Court by the Solicitor General, who, reflecting the change of administration since the original complaint in this case was filed by the EEOC, is now joining with the employer to ask the Court to reverse the 6th Circuit.  The only party defending the 6th Circuit’s decision is the charging party in the EEOC proceeding, transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, is named as a Respondent in Harris Funeral Homes’ cert. petition, and is represented by the American Civil Liberties Union. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), the conservative religious litigation group that is a frequent litigant opposing LGBT rights in the courts.

For purposes of briefing, the Court decided to treat all the employee-plaintiffs in the three cases as if they were Petitioners (although only Bostock is a Petitioner in the Supreme Court), and the three employer-defendants as if they were Respondents (even though two of them are actually Petitioners).  Thus, the first round of briefing, which was concluded early in July, consisted of the main briefs for Gerald Bostock, the Estate of Donald Zarda, and Aimee Stephens, and the amicus briefs (more than 40) filed in support of their claims that Title VII does extend to sexual orientation and gender identity discrimination claims.  The second round of briefing, which concluded during August, consisted of the briefs for the three employers – Clayton County, Georgia; Altitude Express; and Harris Funeral Homes; and the EEOC, which is technically a respondent even though the government, as such, is now siding with the Petitioner.

Interestingly, despite earnest efforts by the Solicitor General’s Office, the EEOC’s General Counsel, who would ordinarily be a signatory on the brief purporting to represent their agency, did not join in the submission of the government’s brief, since as of the date of filing the EEOC had not disavowed its position that gender identity discrimination claims are covered by Title VII.  Indeed, the amicus brief filed by the Solicitor General in the sexual orientation cases on behalf of the employer also lacked the EEOC’s signature, since the agency that enforces Title VII (and whose interpretation of the statute is entitled to judicial deference, under existing precedents), has not disavowed its position (argued as an agency amicus in the 2nd Circuit) that Title VII covers sexual orientation claims.  Quite a tangle for the Supreme Court to confront. During oral argument of Zarda v. Altitude Express in the 2nd Circuit, the en banc bench reflected some puzzlement and bemusement about being confronted with a lawyer from the S.G.’s office and a lawyer from the EEOC arguing against each other.

Simultaneously with the filing of the government’s brief, the Solicitor General filed a request that argument time be divided evenly (15 minutes each) between the Solicitor General’s office and ADF, counsel for Harris Funeral Homes.

Law Notes gave an overview of the first round of filings in our August 2019 issue.  Herewith is a brief summary of the second round of filings.

Altitude Express’s brief was signed by Saul D. Zabell, Counsel of Record who has represented the company throughout this litigation, and Ryan T. Biesenbach of Zabell & Collotta, P.C., a Bohemia, N.Y., law firm.  It predictably argues that the meaning of Title VII must be its “original public meaning” – the meaning that members of the public would attribute to the statutory language when it was enacted by Congress in 1964.  The brief claims that the Supreme Court has never interpreted Title VII in a manner that “conflicts” with “the original public meaning of ‘sex’.”  It also describes as “wrong” the various legal theories offered by Bostock for construing “sex” to include “gender identity.”  It argues that subsequent legislative developments – the repeated introduction of bills to amend federal anti-discrimination law to add “sexual orientation” that have never achieved enactment, as well as the enactment of some other statutes that use ‘sexual orientation’ such as the Hate Crimes Law – show Congress’s understanding that the term must be used to address such discrimination, noting also that after the EEOC and several lower federal courts had rejected sexual orientation discrimination claims in the early period of Title VII’s history, Congress passed a package of amendments to Title VII in 1991 but did not overrule any of those rulings legislatively.  The brief also rejects certain other arguments that some lower court judges had accepted as reasons for extending Title VII to cover sexual orientation claims.  None of these arguments was new or unanticipated, and they were all rejected in one way or another not only in the 2nd Circuit (en banc) but also in the 7th Circuit (en banc) in 2017 in Hively v. Ivy Tech Community College, a case where the employer decided not to seek Supreme Court review.

Clayton County’s brief (Bostock), signed by Counsel of Record Jack R. Hancock and other attorneys from the Forest Park, Georgia, law firm of Freeman Mathis & Gary LLP, carries the same argument headings as Altitude Express’s brief.  Indeed, they appear to be a joint product, making identical arguments.

The main brief that drew most of the press commentary when it was filed, of course, was the Solicitor General’s brief, on which S.G. Noel J. Francisco is Counsel of Record.  The other signatories are attorneys in the Solicitor General’s office and main Justice Department.  As noted above, and deemed newsworthy, no attorneys from the EEOC signed this brief which is presented as the brief of the Federal Respondent (which, technically, is the EEOC).   The brief urges the Court to adopt a narrow interpretation of key Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, contending that the 6th Circuit had extended them beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent.  Most of the arguments in the brief are variants of one or more of the arguments in the Altitude Express and Clayton County briefs, effectively countering the EEOC’s justifications for applying Title VII to gender identity claims in Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012).  Even though the EEOC has not overruled Macy, it is anticipated that it may do so in due course as the new majority resulting from Trump’s appointments to the Commission either rules on a federal sector gender identity discrimination case, proposes a new regulatory interpretation, or takes a position in litigation in the lower federal courts embracing a change of position.  The Commission could just instruct its regional offices to dismiss gender identity claims on jurisdictional grounds, similar to the action of the U.S. Department of Education which now refuses to process gender identity discrimination claims under Title IX of the Education Amendments of 1972.

The brief on behalf of Harris Funeral Homes, submitted by Alliance Defending Freedom, attracted comparatively little attention, with the Solicitor General being the “elephant in the room.”  Mainstream press coverage clearly sees Harris as part of the Trump Administration’s overall opposition to transgender rights as part of its systemic attempt to reverse the civil rights positions taken by the Obama Administration. Clearly, the president feels that he was elected to overturn everything that the Obama Administration did, if possible.  This was certainly reflected in his transgender military service ban and former Attorney General Jeff Sessions’ October 2017 memorandum disavowing the Obama Administration’s positions on both sexual orientation and gender identity discrimination.

Beginning on August 16 and extending through August 23, the Supreme Court clerk added to the docket forty amicus briefs supporting Harris Funeral Homes’ (and the Solicitor General’s) position that Title VII does not extend to gender identity discrimination claims.  Some were from the “usual suspects” familiar to anybody who had scanned the amicus lists in Obergefell and Windsor, the cases concerning marriage equality.  They include states whose anti-discrimination laws do not cover gender identity, Republican members of Congress, companies that don’t want to be forced to employ transgender people, individual legal scholars, polemicists, think tanks and policy institutes, and, of course, religious entities that argue that requiring employers to accommodate transgender people excessively burdens their religious freedom.  (In Harris, the owner of the funeral homes stated his religious beliefs as a justification for his refusal to continue employing the plaintiff after she wrote to him about her gender transition. As a result of this, the district court ruled in favor of Harris Funeral Homes in reliance on the Religious Freedom Restoration Act, employing an interpretation subsequently rejected by the 6th Circuit.  Surprisingly, in light of its religious freedom orientation, ADF did not include in its cert petition a question about the application of the RFRA to this case, so technically the religious arguments made by many of the amici are not pertinent to the questions on which cert was granted.

Particular press attention was drawn to briefs of some feminist groups who are particularly perturbed about any legal recognition of transgender women, making arguments that fall far outside the mainstream of the professional medical and mental health communities about the nature of human sexuality, contending that transgender women are men in drag who should not be given admission to women-only spaces and should not be accorded the treatment under anti-discrimination law that has been accorded to women.  Vox.com devoted a lengthy article to explaining the opposition of some feminist groups to transgender rights.  See Katelyn Burns, The Rise of Anti-Trans ‘Radical’ Feminists, Explained” (posted September 5, 2019).

Also during August, 24 amicus briefs (including one from the Solicitor General, as the federal government is not a party in the sexual orientation cases) were filed in support of the employers in the sexual orientation discrimination cases, Bostock and Altitude Express.  Of course, the EEOC’s legal staff is not represented among the signers of the Solicitor General’s amicus brief, again a newsworthy absence denoting that at least as of the time when briefs were due, the agency had not abandoned its position in Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), that Title VII covers sexual orientation discrimination claims.  Many of these amicus briefs were noted as addressing all three pending Title VII cases and thus were also filed and counted among the Harris Funeral Home amicus briefs.  When it announced the filing schedule, the Court also directed that amicus briefs for the Altitude Express case were to be filed on the Bostock docket. The same mix of amici that one finds on the Harris Funeral Homes docket generally show up on the Bostock list, minus those groups who have a specific focus on opposing transgender rights.  The arguments in the amicus briefs are similar as well, although, of course, the argument that gender is identified at birth is permanent and not changeable is absent here, while it predominates in many of the amicus briefs filed in Harris Funeral Homes.

Several of these amicus briefs emanate from groups that may have been formed for the specific purpose of filing amicus briefs in these cases.  All of the docketed amicus briefs can be examined on the Supreme Court’s website, where they are available to be downloaded in pdf format.

The deadline for the third round of briefing set by the Court is September 16, when Reply Briefs can be filed, responding to the briefs that were filed in August.  Reply briefs, if any, will be reported in the October issue of Law Notes.

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.