Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing EEOC v. R.G. & F.R. Harris Funeral Homes, Inc., a Sixth Circuit case addressing Title VII’s protections for transgendered individuals.
Aimee Stephens was born biologically male. Before transitioning, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the funeral home and its operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.
She filed a complaint with the Equal Employment Opportunity Commission, which brought suit against the funeral home under Title VII of the Civil Rights Act of 1964.
The Funeral Home made two arguments: first, it argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code that it asserts equally burdens male and female employees. Second, it argued that Title VII should not be enforced against the funeral home because requiring the Funeral Home to employ Stephens while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon Rost’s (and thereby the Funeral Home’s) sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act, RFRA.
The District Court found that the funeral home discriminated against Stephens on the basis of sex, but granted summary judgment in favor of the funeral home on its RFRA claim. The Sixth Circuit reversed in a unanimous opinion.
The Court held that the funeral home engaged in unlawful discrimination against Stephens on the basis of her sex, that the funeral home had not established that that applying Title VII to the funeral home would substantially burden Rost’s religious exercise, thus it had no claims under RFRA, and that even if Rost’s religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens.
The Court began with a familiar test for determining workplace discrimination. First, a plaintiff must prove a prima facie case that the prohibited classification played a motivating part in the adverse personnel decision. Then the burden shifts to the employer to show that it would have terminated the plaintiff even had it not been motivated by impermissible discrimination.
Here, the district court had already concluded that the Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII. But the Court determined that the district court erred when it found Stephens could not pursue a claim she was discriminated against on the basis of her transgender and transitioning status.
The Sixth Circuit first looked at the claim that Stephens was discriminated against for failing to conform to sex stereotypes. The Supreme Court in 1989 first determined that Title VII’s prohibition on discrimination because of sex meant that gender must be irrelevant to employment decisions. Relying on this holding, the Sixth Circuit in 2004 held that discrimination based on a failure to conform to stereotypical gender norms was no less prohibited under Title VII than discrimination based on the biological differences between men and women. It further held that there was no reason to exclude such protection simply because the person was transgendered. Thus, Rost’s decision to fire Stephens because she was no longer going to represent herself as a man and wanted to dress as a woman fell squarely within the ambit of sex-based discrimination. The Court further found that the Funeral Home failed to establish a non-discriminatory basis for terminating Stephens. Finally, in response to an argument by the Funeral Home, the Court rejected an argument that sex-stereotyping is only violative of Title VII when it results in disparate treatment of men and women. The Court held that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.
The Court then held that Title VII prevents discrimination on the basis of transgender and transitioning status. First, the Court held that it was analytically impossible to fire an employee based on that employee’s transgender status without being motivated, at least in part, by the employee’s sex. Here, Stephens was fired for being a biological man who wished to comply with the female dress code. Had she been a biological woman who sought to comply with the female dress code, Rost would not have fired her. Thus, Stephens’s sex played an impermissible role in Rost’s decision to fire her.
Animus against one sex or the other is not required. The Court analogized to an employer who fired an employee for converting from Christianity to Judaism. That decision would be “because of religion” even if the employer had no animus against either religion. Because it was the change that motivated the decision to fire, the decision was made because of religion. By the same token, the Court held, discrimination because of sex inherently includes discrimination against employees because of a change in their sex.
Furthermore, having already determined that sex stereotyping was prohibited by Title VII, the Court held that discrimination against transgendered persons necessarily implicates sex stereotyping. A transgender person is someone who “fails to act and/or identify with his or her gender.” 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. The Court concluded that transgender persons are protected because transgender or transitioning status constitutes an inherently gender non-conforming trait.
The Funeral Home argued that Congress was only concerned with biological sex when it passed Title VII, but the Court held that statutory provisions often go beyond the principal evil to be combatted to cover reasonably comparable evils. Furthermore, the Supreme Court has already held that Title VII covers more than just chromosomally driven physiology and reproductive function.
The Funeral Home also argued that both biologically male and biologically female persons may consider themselves transgender, so it is not unique to one biological sex. But the Courts have never held that a trait be exclusive to one sex to be a function of sex. The proper unit of analysis under Title VII is the individual. Therefore, the EEOC could pursue a claim under Title VII that the Funeral Home discriminated against Stephens on the basis of her transgender and transitioning status. The EEOC Therefore, the EEOC could pursue a claim under Title VII that the Funeral Home discriminated against Stephens on the basis of her transgender and transitioning status. The EEOC, the Court held, should have had the opportunity to make that case.
The Court then turned to the various defenses to Title VII liability raised by the Funeral Home and its amici.
The first defense the Court addressed was the ministerial exception to Title VII, which precludes application of laws such as Title VII to claims concerning the employment relationship between a religious institution and its ministers.
The Court quickly dismissed this claim, because in order for the exception to apply, the employer must be a religious institution and the employee must have been a ministerial employee. Here, the Funeral Home was not a religious institution – it has virtually no religious characteristics. It did not seek to establish and advance Christian values, was not affiliated with any church, its employees are not required to hold any particular religious views and it employs and serves individuals of all religions. Furthermore, the Funeral Home is open every day, including Christian holidays, and while the employees are paid for federally recognized holidays, Easter is not a paid holiday.
Moreover, Stephens was not a ministerial employee. Her title did not convey a religious meaning, her title did not reflect a significant degree of religious training, which would set her apart from laypersons, she was not serving as an ambassador of the faith or a leadership role within the church; and she did not perform important religious functions for the religious organization. Thus, the Court rejected this argument.
The Court then turned to the RFRA claim. In order to receive the protections of RFRA, the claimant must demonstrate that complying with a generally applicable law would substantially burden his religious exercise. Upon such a showing, the government must then establish that applying the law to the burdened individual is the least restrictive means of furthering a compelling government interest.
To assert a viable defense under RFRA, the Court held, a religious claimant must demonstrate that the government action at issue would 1) substantially burden 2) a sincere 3) religious exercise. In evaluating these questions, courts must not evaluate whether asserted religious beliefs are mistaken or insubstantial – rather, they must assess whether the line drawn reflects an honest conviction. RFRA protects any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
The EEOC argued that the Funeral Home’s claim must fail because RFRA protects religious exercises, not religious beliefs. The Funeral Home argued in response that the very operation of a funeral home constituted a protected religious exercise.
The Court took Rost’s assertions regarding his religious beliefs as sincere, and the EEOC did not contest them. Thus, the Court treated the running of a funeral home as a religious exercise. However, it found that the Funeral Home had failed to identify any way in which continuing to employ Stephens substantially burdened Rost’s ability to serve mourners. Rost identified two such interests – first, that allowing a funeral director to wear the uniform of the opposite sex would distract the loved ones of the deceased and hinder their healing process, and second, that forcing the Funeral Home to violate Rost’s faith would pressure him to leave the funeral industry and end his ministry to grieving people. The Court found that neither alleged burden was “substantial” for RFRA purposes.
The first burden was based on presumed biases. There was nothing in the record that supported the claim that anyone would even recognize Stephens as transgendered, let alone be bothered by it. This raises a question of material fact, which cannot be resolved on summary judgment. The Court went further, however, and held as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. Put simply, the Court refused to treat discriminatory policies as essential to Rost’s business, or his religious exercise.
As to the second alleged burden, the Court did not believe Government action was forcing Rost into the choice he feared. First, Rost argued that having to purchase clothes for Stephens would violate his belief. But he is under no obligation to buy clothes for any of his employees. The fact that he does so is his choice – it is neither legally required nor, according to Rost, religiously compelled. Thus, this predicament is of Rost’s own making. Second, simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is also not a substantial burden under RFRA. Tolerating Stephens’s understanding of her sex and gender identity, the Court held, is not tantamount to supporting it. The fact that Rost sincerely believes he is being coerced into engaging in conduct that violates his religious convictions does not mean, as a matter of law, that he is so engaged. Here, bare compliance with Title VII, without actually assisting or facilitating Stephens’s transition – does not amount to an endorsement of Stephens’s views. In much the same way that forbidding Rost from firing a Muslim, because he does not believe Islam is the one true faith does not mean he is endorsing Islam, forbidding him from firing Stephens does not mean Rost endorses transgenderism. Indeed, Rost even testified that he employs individuals of many faiths and no faith, and that he is NOT endorsing their religious beliefs by employing them.
Finally, the Court turned to the strict scrutiny test under RFRA and held that, even if Title VII did substantially burden Rost’s sincerely held religious beliefs, the Government had a compelling interest in doing so and Title VII was narrowly tailored to achieve that end. The Funeral Home conceded that the EEOC had a compelling interest in eradicating workplace discrimination generally, but failed to show that that interest was served here. The Court rejected that argument, because the Funeral Home’s construction of the compelling-interest test focuses on its defense, rather than the EEOC’s claim. Here, failing to enforce Title VII against the Funeral Home would allow Stephens to suffer discrimination, which is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.
Finally, the Court examined whether there were other means of achieving this compelling interest without imposing a substantial burden on the exercise of religion by the objecting party. Here, the burden is on the EEOC to show that burdening the Funeral Home’s religious exercise is the least restrictive means of furthering its compelling interests.
The EEOC and its amici argue that searching for an alternative to Title VII is futile because enforcing Title VII is itself the least restrictive way to further EEOC’s interest in eradicating discrimination based on sex stereotypes from the workplace. The Court agreed. Based on the Supreme Court’s discussion in Hobby Lobby that RFRA was not meant to provide a shield to who seek to cloak discrimination as a religious practice, the Court held that enforcement actions brought under Title VII will necessary defeat RFRA defenses to discrimination made illegal by the statute. Since the Hobby Lobby majority did say that anti-discrimination laws are precisely tailored to achieving the government’s compelling interest, the Court followed suit here. The Court concluded that where the Government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the schemes objectives is through its enforcement. Therefore, even if the Court agreed that enforcing Title VII imposed a substantial burden on Rost’s religious exercise, it would still reverse the district court’s grant of summary judgment.
As a policy matter, I agree with the court’s outcome here. I believe that Title VII protects transgendered individuals as part of its prohibition on discrimination based on sex. However, I believe that this determination was unnecessary to the Court’s conclusion. The Court initially determined that Rost discriminated against Stephens based on impermissible sex stereotypes, based on his desire to present as female at work. Therefore, there was no need to make the follow on determination that Title VII protected transgender individuals or those transitioning.
I also believe the Court made the right decision regarding RFRA and Title VII. First, it is hard to see how mere tolerance of another’s differences substantially interferes with religious beliefs. But even if it does, religion simply cannot be a license to discriminate. Which is why I believe the Court’s ruling that Title VII is narrowly tailored to protect a compelling government interest is spot on.
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