BY CRYSTAL A. PROXMIRE
CINCINNATI, OHIO – Justice Helene White of the Sixth Circuit Court of Appeals questioned attorney Douglas G. Wardlow on Wednesday during his oral argument on behalf of R.G. &. G.R. Harris Funeral Homes who are being sued by the Equal Employment Opportunity Commission (EEOC) for both the firing of a transgender employee over a dress code dispute, and over an unequal policy that provided uniforms for the men but required women to buy their own.
“Is it your position that its simply the suit?” Judge White said. “So if he came in with makeup and other indicia of being a woman, it would be fine as long as he wore that company issued suit? …It’s not just about the suit. It’s about presenting as a woman.”
Wardlow held firm to two points – that the firing was over dress-code and that the funeral home owner Tom Rost had a right based, on religious freedom, to not allow a transgender person to interact with the public as the face of his business.
Aimee Stephens, formerly Anthony Stephens, had worked at the Garden City location of Harris Funeral Homes since 2007, and was fired in 2013 after disclosing that she would be taking a vacation and returning to work as a woman. She was told not to return and terminated because she’d been planning to dress in female attire.
“The EEOC and Stephens claim that Title Seven eviscerates Tom Rost’s right to control the face of his business through a sex specific dress code,” Wardlow said. “He operates his business according to the tenants of his faith including that sex is a beautiful gift from God. To employ Stephens when Stephens is violating the sex-specific dress code and dressing as a women when Rost knows that Stephens is not a woman would send a message to the public… that is contrary to his deeply held belief that sex is an immutable gift from God.”
Attorney Anne Noel Occhialino for the EEOC argued that Harris Funeral Home was not a religious institution and that there was no doctrine or text that called for denying employment based on gender.
Wardlow said, “In this case, that business is a religious ministry because Tom Rost feels a religious calling to serve the grieving.”
He argued that Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) protected him from having an employee that did not represent his beliefs while on the job. He also argued that having a sex-specific dress code was not discrimination because “we don’t have disparate impact here to men or women.” Both men and women are impacted by the code equally.
The Price Waterhouse court case was mentioned by both sides. In this case a woman was fired for not being feminine enough, and the courts ruled that to be sex discrimination. The EEOC contended that it gave the basis for not discriminating against men or women who do not conform to gender stereotypes. Wardlow used the same case to say, “This shows there is a difference between men and women.”
The Hobby Lobby case was also a discussion point. In that case Hobby Lobby did not have to provide contraception coverage to employees because there was another method for women to obtain it. The EEOC argued that Hobby Lobby would not apply in this case because the matter was not of a benefit, but of employment itself.
John Anthony Knight, arguing as Intervener for Aimee Stephens, referred to Justice Samuel Alito’s decision that said “RFRA provides not shield to discrimination in hiring since the government has a compelling interest in providing equal opportunity to participate in the workplace without regard to race and prohibitions are tailored to achieve that crucial goal.”
Knight also had the last words of the hearing stating, “I just wanted to direct the court to the fact that the implications for this decision would just be horrendous in terms of the kinds of discrimination that could be opened up by recognizing a RFRA defense here.”
The oral arguments were heard by Justice Helene White (a Bush appointee), Justice Karen Nelson Moore (a Clinton appointee), and Bernice B. Donald (an Obama appointee). A decision could be made within days or months.