Earlier this month, the Sixth Circuit rejected an employer’s
religious objections to complying with Title VII’s prohibitions against
discrimination on the basis of sexual stereotypes. EEOC v. Harris
Funeral Homes, Inc., No. 16-2424. In that case, the Court unsurprisingly (based
on its prior opinions) held that it violated Title VII to terminate an employee
who was preparing for sexual reassignment surgery by dressing and presenting as
the opposite gender. “Discrimination on the basis of transgender and
transitioning status is necessarily discrimination on the basis of sex.” The
Court rejected the employer’s argument that its gender-specific dress code
requirements did not violate Title VII.
While not prohibiting outright sex-specific dress codes, the Court noted
that the employer could not terminate the plaintiff for refusing to confirm to
its “notion of her sex.” The Court
refused the invitation to overrule prior precedent and hold that Title VII
covered sexual orientation discrimination.
Nonetheless, the Court ruled that the Religious Freedom Restoration Act
did not exempt the employer from Title VII in this situation. In particular, rejecting the employer’s
argument that its grieving patrons would object to the plaintiff, the Court
held that “a religious claimant cannot rely on customers’ presumed biases to
establish a substantial burden under RFRA.”
The Court also held that toleration
of gender identity is not the same as supporting
it and mandating toleration is not a substantial
burden on a religious practice. Finally, the Court held that the EEOC had a
compelling government interest in enforcing Title VII.
According to the Court’s opinion, the plaintiff had been
born male and was hired as a funeral director in 2008. The plaintiff was fired in 2013 shortly after informing the defendant
employer that he intended upon returning from his upcoming vacation to
transition to a female and begin presenting (and dressing) as a female at work
for a year before surgery. The owner later testified that gender is a gift
from God, that it would violate God’s natural order to change birth gender, and
he did not want to be complicit in providing clothing or authorizing a man to
dress as a woman while representing his company. He explained to the
plaintiff that the public would not accept his transition to a female. During the subsequent EEOC investigation, the
agency learned that the employer provided its male public facing employees with
clothing that conformed to its dress code, but did not provide similar clothing
or even an allowance to its public facing female employees. It brought suit against the employer on
behalf of the terminated employee and to challenge the clothing allowance
policy. Although noting that the
plaintiff had been fired for failing to conform to gender stereotypes, the
trial court granted summary judgment to the employer on both claims.
The employer immediately modified its clothing allowance
policy when the lawsuit was filed to provide female employees with a comparable
clothing stipend. It had not had a
female funeral director since the owner’s grandmother retired in the 1950’s and
only one (unqualified) female applicant had applied for a director position
since that time. The plaintiff’s charge
had not raised the clothing allowance issue in her Charge of Discrimination. Nonetheless, the Court found that the EEOC
could still bring a legal challenge to the policy in its lawsuit.
The employer argued that Title VII permits employers to
utilize common gender specific dress codes.
Most employers have differing expectations for men and women based on
pants, skirts, hair length, jewelry, etc.
However, the Court rejected the argument that Title VII permits gender
specific dress codes and noted that the employer’s legal authority pre-dated
the Supreme Court’s plurality Price-Waterhouse
decision in 1989 which prohibited sex-based stereotyping (when that
plaintiff had been passed over for partnership in part for not wearing make up
like women are supposed to do).
We are not considering, in this case, whether the Funeral
Home violated Title VII by requiring men to wear pant suits and women to wear
skirt suits. Our question is instead
whether the Funeral Home could legally terminate Stephens, notwithstanding that
she fully intended to comply with the company’s sex-specific dress code, simply
because she refused to conform to the Funeral Home’s notion of her sex.
. . . .
In short, the Funeral Home’s sex-specific dress code does not
preclude liability under Title VII. Even
if the Funeral Home’s dress code does not itself violate Title VII—an issue
that is not before this court—the Funeral Home may not rely on its policy to
combat the charge that it engaged in improper sex stereotyping when it fired
Stephens for wishing to appear or behave in a manner that contradicts the
Funeral Home’s perception of how she should appear or behave based on her sex.
The Court also rejected the defendant’s argument that “sex”
under Title VII was a binary concept (“which classification arises in a person
based on their chromosomally driven physiology and reproductive function”) that
did not include transitioning from one to another. The defendant characterized
transgender status as a “’a person’s self-assigned ‘gender identity’ rather
than a person’s sex.” “We also hold that
discrimination on the basis of transgender and transitioning status violates
Title VII.”
First, 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. The Seventh Circuit’s method of “isolat[ing]
the significance of the plaintiff’s sex to the employer’s decision” to
determine whether Title VII has been triggered illustrates this point. . . . In
Hively, the Seventh Circuit
determined that Title VII prohibits discrimination on the basis of sexual
orientation—a different question than the issue before this court—by asking
whether the plaintiff, a self-described lesbian, would have been fired “if she
had been a man married to a woman (or living with a woman, or dating a woman)
and everything else had stayed the same.”
Id. If the answer to that question is no, then
the plaintiff has stated a “paradigmatic sex discrimination” claim. See id.
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’s sex impermissibly affected Rost’s decision to fire Stephens.
. . . .
Thus, an employer cannot discriminate on the basis of
transgender status without imposing its stereotypical notions of how sexual
organs and gender identity ought to align.
There is no way to disaggregate discrimination on the basis of
transgender status from discrimination on the basis of gender non-conformity,
and we see no reason to try.
While Congressional intent in drafting Title VII may not
have included this interpretation of Title VII, “to anticipate that Title VII
would cover transgender status is of little interpretive value, because
“statutory prohibitions often go beyond the principal evil to cover reasonably
comparable evils, and it is ultimately the provisions of our laws rather than
the principal concerns of our legislators by which we are governed.” It similarly rejected the argument based on drafting
differences that statutes “such as the Violence Against Women Act, expressly
prohibit discrimination on the basis of “gender identity,” while Title VII does
not.”
The Court also
rejected the argument that because both men and women can be transgendered, it
cannot constitute discrimination to treat transgendered individuals the same.
Because an employer cannot discriminate against an employee
for being transgender without considering that employee’s biological sex,
discrimination on the basis of transgender status necessarily entails
discrimination on the basis of sex—no matter what sex the employee was born or
wishes to be. By the same token, an
employer need not discriminate based on a trait common to all men or women to
violate Title VII. After all, a subset
of both women and men decline to wear dresses or makeup, but discrimination against
any woman on this basis would constitute sex discrimination under Price Waterhouse.
While the employer’s owner is religious, the company is not
affiliated with any religious organization, serves patrons of various faiths
and hires employees of various (or even no) faiths. While several amici had argued that the
defendant was entitled to Title VII’s ministerial exception, the defendant and
the Court agreed that it was not applicable in this situation.
The Court rejected the employer’s RFRA defense on the
grounds that complying with Title VII was not a substantial burden on his
religious exercise in administering to mourners and that enforcing Title VII in
this case is the least restrictive means of furthering a compelling government
interest. The Court opted to treat
religious objections in this situation as though they were similar to
objections based on working with women or people of a different race. It also concluded that he was not required to
provide clothing to any of his employees and could eliminate that benefit on a
non-discriminatory basis. The employer “is
not being forced to choose between providing [the plaintiff] with clothing or
else leaving the business; this is a predicament of [his] own making.”
The Funeral Home’s first alleged burden—that [the plaintiff]
will present a distraction that will obstruct [his] ability to serve grieving
families—is premised on presumed biases. . . . The factual premises underlying
this purported burden are wholly unsupported in the record. [The owner] testified that he has never seen [the
plaintiff] in anything other than a suit and tie and does not know how [the
plaintiff] would have looked when presenting as a woman. . . . [His] assertion
that he believes his clients would be disturbed by [her] appearance during and
after her transition to the point that their healing from their loved ones’
deaths would be hindered. . . at the very least raises a material question of
fact as to whether his clients would actually be distracted, which cannot be
resolved in the Funeral Home’s favor at the summary-judgment stage. . . .
But more to the point, we hold as a matter of law that a
religious claimant cannot rely on customers’ presumed biases to establish a
substantial burden under RFRA.
. . . .
. . .We could agree
that courts should not credit customers’ prejudicial notions of what men and
women can do when considering whether sex constitutes a “bona fide occupational
qualification” for a given position while nonetheless recognizing that those
same prejudices have practical effects that would substantially burden [his]
religious practice (i.e., the operation of his business) in this case. But the Ninth Circuit rejected similar
reasoning in Fernandez, and we reject
it here.
As for the burden on his religious practice by being
required to employ the plaintiff as a public representative of his company, “simply
permitting [the plaintiff] to wear attire that reflects a conception of gender
that is at odds with [the owner’s] religious beliefs is not a substantial
burden under RFRA. . . . . tolerating
Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” (emphasis added).
The Court noted that
it had required religious organizations to comply with the ObamaCare’s opt-out
provisions on the grounds that they were not a substantial burden on their
religious practices.
We view the Funeral Home’s compliance with antidiscrimination
laws in much the same light. Rost may
sincerely believe that, by retaining Stephens as an employee, he is supporting
and endorsing Stephens’s views regarding the mutability of sex. But as a matter of law, bare compliance with
Title VII—without actually assisting or facilitating Stephens’s transition
efforts—does not amount to an endorsement of Stephens’s views. Similarly, here,
requiring the Funeral Home to refrain from firing an employee with different
religious views from Rost does not, as a matter of law, mean that Rost is
endorsing or supporting those views. . . . .
Indeed, Rost’s own behavior suggests that he sees the difference between
employment and endorsement, as he employs individuals of any or no faith,
“permits employees to wear Jewish head coverings for Jewish services,” and
“even testified that he is not endorsing his employee’s religious beliefs by
employing them.”
At bottom, the fact that Rost sincerely believes that he is
being compelled to make such an endorsement does not make it so.
The Court also found that the EEOC had a compelling
government interest in preventing workplace discrimination. “The Supreme Court has already determined
that RFRA does not, in fact, “effectuate . . . the First Amendment’s guarantee
of free exercise,” id., because it sweeps more broadly than the Constitution
demands. . . . We therefore decline to hoist automatically Rost’s religious
interests above other compelling governmental concerns.”
The Court also found that enforcing Title VII was the least
restrictive means. “Where an alternative
option exists that furthers the government’s interest “equally well,” . . ., the government “must use it.”
Indeed, “[t]he district court found that requiring the Funeral Home to
adopt a gender-neutral dress code would constitute a less restrictive
alternative to enforcing Title VII in this case, and granted the Funeral Home
summary judgment on this ground.”
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.
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. For
instance, Rost stated that he fired Stephens because Stephens “was no longer
going to represent himself as a man,” .
. ., and Rost insisted that Stephens presenting as a female would disrupt
clients’ healing process because female clients would have to “share a bathroom
with a man dressed up as a woman,” . . . The record thus compels the finding that
Rost’s concerns extended beyond Stephens’s attire and reached Stephens’s
appearance and behavior more generally.
. . .
The Funeral Home’s proposed alternative—to “permit businesses
to allow the enforcement of sex-specific dress codes for employees who are
public-facing representatives of their employer, so long as the dress code
imposes equal burdens on the sexes and does not affect employee dress outside
of work,” . . .is equally flawed. . . . the
EEOC does have a compelling interest in ensuring that the Funeral Home does not
discriminate against its employees on the basis of their sex. The Funeral Home’s proposed alternative
sidelines this interest entirely.
. . .
To start, the Supreme Court has previously acknowledged that “there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.” . . .
To start, the Supreme Court has previously acknowledged that “there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.” . . .
The Court seemingly recognized Title VII’s ability to
override RFRA in Hobby Lobby, as the
majority opinion stated that its decision should not be read as providing a “shield”
to those who seek to “cloak[] as religious practice” their efforts to engage in
“discrimination in hiring, for example on the basis of race.” . . .
While the Hobby Lobby
Court permitted a RFRA exemption to ObamaCare’s contraception mandate,
ObamaCare’s statute already provided an exemption mechanism, unlike Title VII’s
prohibition on sex discrimination in this case.
NOTICE: This summary
is designed merely to inform and alert you of recent legal developments. It
does not constitute legal advice and does not apply to any particular situation
because different facts could lead to different results. Information here can
be changed or amended without notice. Readers should not act upon this
information without legal advice. If you have any questions about anything you
have read, you should consult with or retain an employment attorney.
