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Updated Thursday, Aug. 18
U.S. District Judge Sean Cox ruled today that R.G. & G.R. Harris Funeral Home’s Owner Thomas Rost did not discriminate against Aimee Stephens, formerly Anthony Stephens, when he fired her.
In his ruling, Cox wrote that requiring the funeral home to do something it was religiously opposed to because of discrimination laws “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.”
ACLU LGBT Staff Attorney Jay Kaplan reiterates the facts in this case “demonstrated that the Harris funeral home was not a religiously affiliated home, served all denominations and is open to anyone in the public, and yet because of the owner’s professed individual religious beliefs, he can both willfully violate civil rights laws and such civil rights laws cannot be enforced.”
Cox concluded that “under the unique facts and circumstances of this case, the Funeral Home is entitled to a RFRA exemption from Title VII (and the sex stereotyping body of case law under it).”
Spokeswoman for the EEOC, Christine Nazer said, “We are disappointed with the decision and reviewing our next steps.”
Kaplan said he hopes those next steps are an appeal of this decision to the 6th Circuit Court.
“The implications of allowing this broad RFRA exemption in this case are staggering. People do hold sincerely held religious beliefs about many things and those beliefs are protected by the constitution,” he said. “However, if religious motivation exempts businesses from anti-discrimination laws, our government would be powerless to enforce laws to protect all Americans against the harms of discrimination.”
This mean business owners could refuse service to people of color, on the grounds that religious beliefs forbid racial integration. Employers could refuse to hire women or pay them less than men, because their religious beliefs require women to remain at home. Colleges and universities receiving federal funds could impose religiously motivated racial segregation policies.
“All civil rights laws would be subject to this challenge that the discrimination was motivated by religion,” he said. “This kind of challenge, this claim has no foundation in our laws and our constitution.”
Between the Lines will continue to report on this story further. Watch for online updates.
DETROIT- U.S. District Judge Sean Cox heard oral arguments on motions for summary judgments Aug. 11 in the case of the federal Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc. in the Eastern District of Michigan Court in Detroit. The lawsuit revolves around Aimee Stephens, formerly Anthony Stephens, who was fired from her position as funeral director and embalmer at the Garden City location of the Detroit-based company in August 2013.
Stephens was employed since 2007. Her termination came two weeks after she wrote her employer a letter informing them about her transition from male to female, and explaining that she intended to dress in appropriate business attire as a woman. The funeral home’s owner, Thomas Rost, responded by handing Stephens a severance agreement telling her that what she was “proposing to do” was unacceptable. Rost gave testimony in November 2015 that Stephens was fired because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”
When asked by EEOC Trial Attorney Dale Price why that is a problem, Rost said “because we have a dress code that is very specific that men will dress as men; in appropriate manner, in a suit and tie that we provide and that women will conform to their dress code that we specify,” according to court records. For this reason, among others, the EEOC brought a sex-discrimination lawsuit against the funeral home on behalf of Stephens.
Is Sex Stereotyping Impermissible Under Title VII?
Under Title VII of the Civil Rights Act of 1964, federal law “prohibits employers from firing employees because they do not behave according to the employer’s stereotypes of how men and women should act,” said EEOC attorney Laurie Young in a statement issued in September 2014.
This case is one of the first of the EEOC’s attempts to hold companies liable for bias against transgender employees. Cox’s questions for EEOC attorneys in court centered on whether transgender people are a protected class under Title VII and if Stephens was considered a public face of the funeral home.
In response to what, if any, statutory or case authority there is to back up the EEOC’s position, Price drew Cox’s attention to a number of federal cases which have upheld transgender rights under Title VII. This includes Smith v. City of Salem in the 6th Circuit Court in 2004, Schroer v. Billington in the U.S. District Court for the District of Columbia in 2008, and Glenn v. Brumby in the 11th Circuit Court in Atlanta in 2011. All leading up to the EEOC’s landmark decision in the Macy v. Holder case in April 2012.
To be clear, as Price noted in court, the EEOC’s decision did not declare transgender people to be a protected class. Congress could change that by passing the Equality Act (formerly the Employment Non-Discrimination Act) making it “explicitly illegal to fire someone because of their sexual orientation or gender identity. The bill has strong bipartisan support and the support of a vast majority of Americans. It ought to be the law of the land,” wrote President Barack Obama in anop-ed published in the Huffington Post in November 2013. Until that happens, what transgender people do have, according to the EEOC’s motion, is an indirect protection under Title VII as a result of the Price Waterhouse v. Hopkins case in 1989 when the U.S. Supreme Court ruled that sex stereotyping can be an actionable form of employment discrimination.
The Court held that Title VII forbids employers from discriminating against an employee for failing to live up to gender-role expectations. Moving forward after these victories, it is doubtful that employers who discriminate against a transgender employee and challenge the Macy ruling in federal court will succeed. Despite that, the funeral home has stood behind their choice to terminate Stephens because she “failed to comply with its dress code based on the biological sex of its employees.”
Alliance Defending Freedom Attorney Doug Wardlow spoke in defense of the funeral home, citing facts from their motion. “The government should respect the freedom of those who are serving the grieving and vulnerable,” Wardlow said. “The funeral home’s dress policy is legitimate, understandable, and legal. Numerous courts have recognized that companies may differentiate between men and women in their dress and grooming policies without violating Title VII.”
But the EEOC is not “challenging gendered dress codes, as the defendant would have this court believe,” according to the amicus brief the ACLU wrote in April 2016 in support of the EEOC’s motion. As the facts in this complex case can be confusing, the ACLU emphasized it’s “only about whether firing a transgender female employee because of her plan to start dressing as a woman constitutes sex stereotyping in violation of Title VII. It plainly does.”
The RFRA Dispute
The funeral home moved to dismiss the case in April 2015 on the grounds that gender identity is not protected by Title VII; however, the court concluded that the EEOC had properly alleged a sex discrimination claim asserting that Stephens was fired for failing to conform to Rost’s sex-or gender-based stereotypes.
After the motion to dismiss was denied, the funeral home amended its answer to raise defenses under the Free Exercise Clause and the Religious Freedom Restoration Act. The ADF’s motion reads “Rost is a devout Christian who believes that God has called him to minister to these grieving families, and his faith informs the way he operates his business and how he presents his business to the public.”
The funeral home argues that it is protected by RFRA, which prohibits encroachment on certain kinds of business owner’s religious convictions absent a compelling government interest. The Supreme Court in 2014 held in the highly-controversial case, Burwell v. Hobby Lobby Stores, that RFRA applies to closely-held for-profit companies.
“The undisputed facts demonstrate that forcing RG to allow Stephens to wear the uniform for female funeral directors would require Rost ‘to engage in conduct that seriously violates [his] religious beliefs,'” according to their motion. “Moreover,…requiring [RG] to permit a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – RG’s ability to carry out Rost’s religious exercise of caring for the grieving.”
This defense, according to the ACLU, is not new and for decades, private employers have attempted to use their religious beliefs to evade compliance with anti-discrimination laws, including Title VII.
“I believe that this is the gist of the Defendant’s position, that by having Stephens play a role in the public face of the funeral home will somehow burden the exercise of the owner’s religious beliefs,” ACLU of Michigan LGBT Project Staff Attorney Jay Kaplan said. “But couldn’t that also be used to excuse other kinds of discriminatory practices…refusing to hire a woman to be a funeral director, refusing to hire a person of color, for example. It’s also interesting to note that Rost does not advertise his funeral home as a specific denominational one and in depositions indicated that they serve families of all faiths, so there’s lots of contradictions here.”
No decision was made, but Cox said a ruling is likely within seven to 14 days. The EEOC is asking the funeral home to institute policies and practices that provide equal employment opportunties regardless of sex, including gender identity. It also wants Stephens to get appropriate back pay and compensation for medical losses, job search expenses and a lost clothing allowance.