EEOC Loses Transgender Bias Claim Against Funeral Home

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By Kevin McGowan

Aug. 18 — A Michigan funeral home is entitled to a religious exemption under the Religious Freedom Restoration Act and therefore didn't violate federal employment discrimination law by requiring a transgender employee who was transitioning from male to female to wear a man's suit at work, the U.S. District Court for the Eastern District of Michigan ruled ( EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., E.D. Mich., No. 14-13710, 8/18/16 ).

The Aug. 18 decision comes in one of the first two lawsuits the EEOC filed against private-sector employers alleging that discrimination based on transgender status is sex discrimination under Title VII of the 1964 Civil Rights Act. The other lawsuit, against Lakeland Eye Clinic in Florida, was settled for $150,000 in April 2015.

The district court in 2015 had rejected the EEOC's position that it stated a Title VII claim by alleging Aimee Stephens's termination was due to transgender status or gender identity. The court said those aren't protected categories under Title VII. But it said the EEOC could pursue its claims on Stephens' behalf under the sexual stereotyping theory previously recognized by the U.S. Court of Appeals for the Sixth Circuit.

In its latest ruling, the court said R.G. & G.R. Funeral Homes is entitled to summary judgment because enforcing the EEOC's position that the funeral home engaged in “sexual stereotyping” by requiring Stephens to dress as a man at work would infringe on the employer's rights under the Religious Freedom Restoration Act.

The EEOC argued that the funeral home violated Title VII by firing Stephens for failure to conform with masculine gender stereotypes regarding work clothing. The agency argued Stephens had a Title VII right not to be subject to such stereotypes and to dress as a woman at work.

Competing Rights Under RFRA

But the court faulted the EEOC's failure to explore accommodation of the funeral home's competing rights under the RFRA and to pursue the alternative least restrictive of the employer's legitimate religious interest.

“If the compelling interest is truly in eliminating gender stereotypes, the court fails to see why the EEOC couldn't propose a gender-neutral dress code at work that would be a less restrictive means of furthering that goal” in the funeral home context, Judge Sean F. Cox wrote.

The EEOC never discussed such an option, instead maintaining Stephens must be allowed to wear a skirt to express her gender identity, the court said.

“If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender ‘irrelevant'), the EEOC's chosen manner of enforcement in this action does not accomplish that goal,” the court said.

The EEOC hasn't met “its demanding burden” under the RFRA to show that its position furthers a compelling governmental interest through the least restrictive means, the court said.

The funeral home therefore is “entitled to a RFRA exemption from Title VII, and the body of sex-stereotyping case law that has developed under it, under the facts and circumstances of this unique case,” Cox wrote.

EEOC attorneys in Detroit represented the commission. Kirkpatrick Law Offices PC and the Alliance Defending Freedom represented R.G. & G.R. Harris Funeral Homes.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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