The EEOC has made very clear its position that Title VII’s prohibitions against sex discrimination apply to transgender employees. (Click here for review of that issue.) It also sued a funeral home in Michigan in September 2014 when it fired its funeral director, a transgender employee, for dress code violations. It also lost at the trial court level. The case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., E.D. Mich., No. 14-13710, 8/18/16. That said, I would not call this case a victory for employers, and maybe not for anyone, really. Why not? Read on after the jump to find out…So what happened? In August, 2013, Aimee Stephens, the defendant’s funeral director, indicated she was transitioning from male to female and would start adhering to that part of the employer’s dress code that applied to female employees (i.e. wear skirt suits to work rather than the men’s suit that she had previously worn, pursuant to the company’s dress code.) Her employer, R.G. & G.R. Harris Funeral Homes, Inc., terminated her citing dress code violations. Ms. Stephens filed an EEOC charge, alleging sex discrimination under Title VII. The EEOC ultimately filed suit on Ms. Stephens’ behalf in September 2014.
Judge Sean Cox of the U.S. District Court, Eastern District of Michigan, initially dismissed first of the two Title VII sex discrimination claims, the one based on termination by reason of her transgender status. Judge Cox took the position that Title VII’s protections do not include gender identity. He did, however allow the second claim, based on gender stereotyping to stand. Under the 1989 U.S. Supreme Court case, Price Waterhouse v. Hopkins 490 U.S. 228, taking adverse employment action against an employee on the basis of his or her non-compliance (or compliance) with gender stereotypes is prohibited sex discrimination under Title VII.
Ms. Stephens’ stated intention to dress like a woman and not a man, and the employer’s undisputed decision to terminate Ms. Stephens on that basis would seem to be a slam-dunk for the EEOC. This employer, like Hobby Lobby, asserted religious rights under the Religious Freedom Restoration Act. (RFRA). (Click here for review.) Huh? What religious rights would be an issue here, and how would the RFRA have helped this employer? Has Hobby Lobby really opened the flood gates to employers circumventing prohibitions under federal employment laws, as many had feared? In my humble opinion, no. This is another case with a narrow application, and that is why we (and by we, I mean employers and employees alike) should not get too excited.
The funeral home is a closely held corporation, owned by a devoutly religious Christian. The funeral home’s stated mission is to operate in accordance with Christian Biblical tenets, namely that the gender one is assigned at birth is immutable. The funeral home argued that the EEOC’s attempt to force it to accommodate Ms. Stephens’ request to wear a skirt suit substantially burdened its right to conduct its business in accordance with its sincerely held religious beliefs. The US Supreme Court held that the RFRA protects closely held corporations in addition to individuals in Burwell v. Hobby Lobby Stores, Inc. In that same case, the U.S. Supreme Court explained that under the RFRA, when the government seeks to impose a requirement that impinges on a person’s (or closely held corporation’s ) sincerely held religious belief, it must prove that: a) the requirement that it seeks to impose on that person is necessary to further a compelling interest; and b) that requirement is the least restrictive means available. The court here found that the EEOC, as a government entity did not meet these criteria. Let’s look at the court’s reasoning.
The court noted that the EEOC did not dispute that the funeral home owner’s beliefs were sincerely held religious beliefs. The court then assumed that the EEOC’s interest in preventing gender stereotyping is a compelling governmental interest. The court then reasoned that the EEOC’s attempt to require the funeral home to allow Ms. Stephens to dress in a skirt suit was not the least restrictive means available to meet that interest. How so? First, there was no indication that the EEOC even tried to look for or discuss a less restrictive means. Second, the court’s ruling discussed (and, if I read and remember correctly, it cited deposition testimony indicating) the possibility of being allowed to require Ms. Stephens to wear a pant suit along the lines of those worn by many female professionals. Now, I am well aware that many of us could argue this reasoning. I am not defending it, just explaining it. If the EEOC appeals, we may hear more on the matter, and on this judge’s reasoning.
So, how and why hasn’t Hobby Lobby set a widespread precedent of employers circumventing prohibitions under key employment laws by asserting rights under the RFRA? The RFRA is a defense against a government entity attempting to compel adherence to a requirement that arguably impinges on an employer’s sincerely held religious beliefs. It is not available in a dispute between an employee (i.e. a private individual) and a private employer.
What would have happened if a private employee, and not the EEOC had sued the funeral home? Would the funeral home have lost the case based on gender stereotyping? Perhaps not. How come? Because, under these facts there was an inherent inconsistency. The EEOC claimed that the funeral home’s termination of Ms. Stephens based on her refusal to wear a man’s suit was impermissible gender stereotyping under Title VII, but, it: a) did not challenge the dress code itself as a form of gender stereotyping; and b) inherent in the EEOC’s argument was the assumption that only by wearing a skirt suit could Ms. Stephens express her gender identity, which, according to the court’s reasoning was also a form of gender stereotyping.
Bottom line: this case, because of the specific facts: a) does not really set precedent with respect to Title VII and protections for transgender workers; and b) may not be too instructive on the issue of impermissible gender stereotyping. Stick with Price Waterhouse v. Hopkins and some of its other progeny for guidance on that issue– and beware of inflexible dress codes. Evaluate dress code violations on a case by case basis for any Title VII or similar protections before you terminate or discipline an employee.
Oops, I’m sorry our time is up. See you next week!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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