Wednesday, March 7, 2018
RFRA no Defense in Gender Identity/Sex Discrimination Suit Says Sixth Circuit
Thanks to Christine Duffy (Senior Staff Attorney, ProBono Partnership) who sent along news that the Sixth Circuit handed down its opinion in EEOC v. R.G. & G.R. Harris Funeral Homes today. You might recall from our earlier postings(mine here and Christine's much more complete post here) that this lawsuit was brought by the EEOC against a funeral home, alleging that the funeral home discriminated against its funeral director Aimee Stephens by refusing to allow her to follow its dress code for female funeral directors and terminating her when she requested to do so. Aimee began work as Anthony Stephens and had been designated male at birth. The EEOC argued that the funeral home's conduct was sex discrimination, that it terminated Stephens based on sex stereotypes about how men and women should present themselves. The funeral home owner, Thomas Rost, defended his action, arguing that it grew out of his religious beliefs that sex is immutable and binary and that he would be complicit in sin if he allowed an employee to wear the uniform of the other sex.
On cross-motions for summary judgment, the district court had held that the Religious Freedom Restoration act (RFRA) barred the EEOC from enforcing Title VII in this case. The Sixth Circuit reversed the grant of summary judgment for the funeral home and granted the EEOC's motion for summary judgment. The district court had found that Stephens's charge had stated a claim for discrimination based on sex stereotyping, but held that the case could not be pursued alternatively on the theory that discrimination on the basis of gender identity or gender transition was sex discrimination. The Sixth Circuit agreed that this could go forward as a sex stereotyping case, but reversed the other part of that holding, instead holding that discrimination on the basis of gender identity is sex discrimination and that the EEOC should have the opportunity to prove that the funeral home fired Stephens because of her gender identity. The courts thorough analysis of this issue is worth reading in full.
Based on this potential Title VII violation, the Sixth Circuit then turned to the funeral home's defense, reversing its RFRA holding. The court first considered an issue raised in an amicus brief, that the ministerial exception should apply. Finding that the funeral home had virtually no religious characteristics -- it wasn't affiliated with any church, its articles of incorporation didn't avow any religious purpose, its employees were not required to hold any particular religious views, and it employed and served individuals of all religions -- it was a religious organization that could claim a ministerial exemption. Analyzing RFRA, the court held that while the owner, Rost's action of running the funeral home may have embodied some sort of religious exercise, having to continue to employ Stephens would not substantially burden that. Rost asserted that potential clients would be distracted by Stephens' appearance. The court found that speculative and based in biases, but also found it irrelevant, holding that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA, analogizing it to a cases finding customer preference insufficient to establish a business necessity or bona fide occupational qualification defense. The court also held that there was no evidence of a financial burden the funeral home could not avoid or sufficient complicity in Stephens' gender expression to constitute a substantial burden.
Even assuming that the funeral home had made that showing, the court further held that prohibiting sex discrimination was a compelling governmental interest, and requiring the funeral home to allow Stephens to wear women's attire at work was the least restrictive means to further the EEOC's interest in eradicating discrimination based on sex stereotypes from the workplace. In other words, Title VII is itself strikes the appropriate balance and is the least restrictive means to enforcing the government's interest in eradicating discrimination.
I'm sure there is more that I'm missing, and I encourage you to read the whole opinion.
I agree, Christine. And your point about Vickers is so important. That opinion, in my view, highlights the struggle that courts are having trying *not* to protect LGB and maybe T employees given the development of sex discrimination jurisprudence and a growing understanding of sex and sexuality as non-binary. This struggle leads courts to nonsensical positions. I often urge my students to read it for just that purpose. The R.G. & G.R court's admonishment and disavowal of that case will hopefully make it functionally disappear.
Posted by: Marcia | Mar 8, 2018 7:48:42 AM
This is a really important opinion on so many levels.
Recognizing that discrimination based on gender identity, transitioning status, or being transgender is per se sex discrimination.
Clearly articulating that RFRA will not be a defense in sex discrimination cases.
Affirming that the Ninth Circuit’s Jespersen opinion was wrongly decided.
One aspect of the opinion that might get overlooked as it was somewhat of a sidebar is that the Sixth Circuit hammer a hopefully fatal stake in another panel’s decision, Vickers v. Fairfield Medical Center. Vickers imposed a new burden that only LGB (and possibly T) employees had to overcome: they needed to show that they were discriminated against for failing to “conform to traditional gender stereotypes in any observable way at work.” The “while at work” test hadn’t been adopted by any court prior thereto and was clearly contrary to earlier Sixth Circuit opinions, some of which the newest Sixth Circuit opinion highlighted.
When working on the GISO treatise, the Sixth Circuit stood out to me as the one circuit that had dueling panels. It was so noticeably that we included an entire section in the Title VII chapter to highlight the duel (“Conflicting Approaches to the Issue as Demonstrated by Sixth Circuit Case Law”). One panel would give while another panel would take away. Over and over. It was clear that a minority of judges on the Sixth Circuit simply did not like the court’s earlier, well-reasoned landmark decision in Smith v. City of Salem.
Posted by: Christine Duffy | Mar 8, 2018 5:56:59 AM