On August 18, 2016, a U.S. District Court in Michigan ruled that religious rights under the Religious Freedom Restoration Act (RFRA) trump transgender rights under Title VII of the Civil Rights Act of 1964. EEOC v. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich., August 18, 2016).
The employee (as a male) worked at a funeral home as a funeral director and embalmer. On July 31, 2013, she distributed a letter to coworkers indicating that she suffered from gender identity disorder and was going to be treated by undergoing sex reassignment surgery. The letter indicated that before undergoing the surgery, she had to live and work as a woman for at least 1 year. The letter further indicated that when she returned from vacation on August 26, she would begin dressing as a woman at work and requested the support of coworkers. On the day she planned to begin her vacation (August 15), the owner terminated the employee because she would no longer dress as a man while at work.
The funeral home had a dress code that said male funeral directors were to wear men’s pants suits with a tie and female funeral directors were to wear women’s skirt suits (and no tie). Neither party disputed that the employee intended to dress according to the dress code’s provision about how women should dress. Furthermore, the owner indicated he would not have terminated the employee if she had dressed as a man at work, but dressed as a woman while not at work.
The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which ultimately filed suit in federal court on her behalf.
Basis of lawsuit
The EEOC maintained that the employee was unlawfully terminated for two reasons:
- She was transgender and transitioning from male to female (sex discrimination).
- She was not conforming to the funeral home’s expectations about how males should dress (discrimination of the basis of sexual stereotyping).
On April 23, 2015, the court dismissed the sex discrimination charge, finding Title VII does not protect employees against discrimination based on being transgender or transsexual. Over the past 2 years (at least), the EEOC has maintained that discrimination on the basis of being transgender or transsexual is discrimination on the basis of sex. Nevertheless, the court allowed the case to proceed on the basis of the sexual-stereotyping discrimination. For more information, see EEOC v. Harris Funeral Homes, Inc., 100 F.Supp.3d 594 (E.D. Mich. 2015).
Funeral home’s defenses
In the briefs and oral arguments related to the second claim, the funeral home raised two defenses:
- Dress codes with slightly different requirements for men and women don’t violate Title VII.
- The funeral home was entitled to an exemption under the Religious Freedom Restoration Act.
The court rejected the first defense because of no clear-cut precedents issued by the U.S. Sixth U.S. Circuit Court of Appeals. But the court accepted that the funeral home had established that the law would impose a substantial burden on its ability to conduct business in accordance with its sincerely held religious beliefs. The evidence for this belief was the following:
- The funeral home’s mission statement says that its highest priority is to honor God in all that it does.
- The owner believes God has called him to serve grieving people and that his religious faith compels him to do that important work.
- The owner believes that the Bible teaches that a person’s sex, whether male or female, is a gift from God and that it’s wrong for a person to deny or change his God-given sex.
- The owner believes that he would be violating God’s commands if he were to allow funeral directors to deny their sex while working as a representative of the funeral home.
- The owner believes that allowing a male-born director to wear a skirt would cause him to support the idea that sex is a changeable social construct rather than an immutable gift of God.
Burden shifts to EEOC
The court then pointed out that the burden shifted to the EEOC to show two things:
- The burden on the individual affected is in furtherance of a compelling governmental interest.
- The least restrictive means of furthering that compelling governmental interest has been employed.
In reaching its decision, the district court observed that the U.S. Supreme Court had indicated that this two-part test required by the Religious Freedom Restoration Act is the most demanding test known to constitutional law. The court assumed that the EEOC had met its first burden of a compelling governmental interest, but found that the EEOC had not met its burden of showing that the least restrictive means had been employed.
EEOC fails least-restrictive-means element of test
In meeting the least-restrictive-means element of the test, the court indicated that the Government must show that it lacks other means of achieving its goal without imposing a substantial burden on the exercise of religion by the objecting party, as required by Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (U.S. 2014). In reaching its decision, the court noted that there was no evidence that the EEOC had explored any other less burdensome approaches or accommodations than allowing the employee to wear a woman’s skirt suit. As an alternative, the court suggested that a reasonable accommodation would be a dress code that required all funeral directors to wear a jacket and pants, but no tie.
The court also observed that the reason for the EEOC’s failure to consider other approaches was probably based on its assumption that being transgender was a protected class under Title VII and that no other approach can be taken to allowing the employee to express her female gender other than dressing as a woman in a skirt.
In passing, the court noted that the Religious Freedom Restoration Act apparently doesn’t apply to lawsuits between private parties. In other words, if the employee had individually pursued her case of discrimination, the results might have been different.
What does all this mean for employers?
Our society is currently debating how to treat transgender and transsexual people, and the debate is not settled. Until it is settled, employers are left without clear-cut guidance about how to respond.
In a case settled in April 2014, the Lakeland Eye Clinic agreed to pay $150,000 to a terminated transgender employee. This settlement indicates a win for the EEOC’s position that discrimination against transgender and transsexual employees is discrimination on the basis of sex. But in the Lakeland Eye Clinic case, there was never any indication of a religious basis for the actions of the employer. For more information, see consent decree for EEOC v. Lakeland Eye Clinic, U.S. District Court for the Middle District of Florida (April 1, 2015).
In addition, the EEOC is participating in a number of cases concerning transgender discrimination, a fact that suggests that the debate many soon be settled. (These cases are likely to be appealed to the U.S. Supreme Court for its final say.)
Therefore, most employers are well advised to view the funeral home case as an outlier and continue to treat transgender and transsexual employees as members of a protected class. For those employers with a religious basis for opposition to such employees, defending a lawsuit based on the Religious Freedom Restoration Act may only be effective if the EEOC sues on behalf of the employee instead of the employee filing suit.
In a similar matter, the U.S. Seventh Circuit Court of Appeals ruled that Title VII doesn’t protect employees against discrimination on the basis of sexual orientation, but does protect employees against discrimination on the basis of sexual stereotyping. However, the court reached this conclusion with reservations and remarked:
As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight. This type of gerrymandering to exclude some forms of gender-norm discrimination but not others leads to unsatisfying results.
See Hively v. Ivy Tech Community College, 2016 WL 4039703 (7th Cir. July 28, 2016).
The chairman of the EEOC has remarked that the U.S. Supreme Court may soon be taking up this issue.
Congress passed the Religious Freedom Restoration Act in 1993 (Public Law 103-141), codified at 42 U.S.C. § 2000bb and following.
See these related posts
- EEOC brings sexual orientation claims under umbrella of Title VII
- Historic settlement of sexual orientation discrimination lawsuit
- EEOC files suit against private-sector employer for discrimination against transgender employee
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