Yesterday a Federal District Court in Michigan decided EEOC v. R.G. & G.R. Harris Funeral Homes. A copy of the opinion can be found here: Harris Funeral Home Case. This is an interesting case involving Title VII and RFRA.
Stephens, an employee, was fired by the defendant funeral home after informing the owner that she had been struggling with gender identity issues for years and planned to undergo male to female gender reassignment. To do so she was expected to live, and dress, as a woman for a year before the procedure could be performed. The funeral home has a strict dress code for male and female employees. The owner fired Stephens because she planned to dress as a female at work. She was willing to meet the dress requirements for female employees, but she was unwilling to dress as a man. The employer testified he would not have fired her for dressing as a female outside of work.
The EEOC investigated the case and found two counts of gender discrimination. The first was the termination of Stephens, and the second was based on the fact that the employer provided clothing to male employees free of charge but not to female employees. This post will only focus on the first issue which gave rise to the RFRA defense. The case was decided after motions for summary judgment were filed by both sides (for those unfamiliar with the law on this, a motion for summary judgment is a motion asking the court to find that there are no issues of material fact and therefore the party filing the motion is entitled to judgment as a matter of law). Both sides agreed on the relevant facts.
The court held that the termination did violate Title VII under the standards applied by the 6th Circuit Court of Appeals which covers Michigan, but that was not the end of the claim because the employer asserted a defense under RFRA. Both parties agreed that the funeral home was a closely-held for-profit entity primarily owned and directed by one person (a small share of the business was owned by his children). The owner is a deeply religious person who views his job as a spiritual calling. The funeral home website, as well as some of it’s practices, reflect this religious influence. The owner believes that G-d gives people a gender at birth and that it is a sin for people to change that gender. He testified, however, that he would not have fired plaintiff if she only dressed as a woman away from work.
The court found RFRA applied to the case because the EEOC is a federal agency and the EEOC rather than Stephens filed suit. This is important because there is strong precedent in several circuits, including the 6th Circuit, that RFRA does not apply to claims between private parties. Therefore, if Stephens rather than the EEOC had filed the claim there would have been no RFRA defense. The court recognizes this at pp. 44-45. Yet, because this claim was filed by the EEOC rather than the employee RFRA applies.
After Hobby Lobby, for better or for worse, RFRA applies to for-profit entities so the funeral home is protected under RFRA. Given the nature of the business and the owner’s religious commitments the court had little trouble finding a substantial burden on a sincere religious belief. Further, the court assumed that the government had a compelling interest in enforcing Title VII. Yet the court suggests it is not clear whether there will always be a compelling interest when Title VII is violated since Hobby Lobby requires that strict scrutiny be analyzed based on the specific parties and facts involved. I am troubled by the implication that Title VII, or any anti-discrimination law, may not always serve as a compelling interest depending on the facts of a given case. As I explain in Freedom’s Edge, antidiscrimination laws should always provide a compelling interest when violated. The U.S. Supreme Court has repeatedly held government has a compelling interest in enforcing antidiscrimination laws, and if they are violated the underlying facts could not erase that compelling interest.
Of course, even when a compelling interest exists the government action must be narrowly tailored to meet that interest. This is where the EEOC lost the claim, and the court makes some excellent points on this issue. The court points out that an obvious less restrictive alternative would be for the government to require the employer to utilize a gender neutral dress code (for example, pants suits). The court notes that many employers have gender neutral dress codes. This is a good argument. Still, there are arguments favoring the EEOC as well. For example, even if Stephens wore a pants suit it is unlikely the employer would have allowed her to present as a woman by, for example, wearing makeup, etc. This case will almost certainly be appealed, and it will be interesting to see how it is decided. It could go either way on the narrow tailoring issue.