In today's EEOC v. R.G. & G.R. Harris Funeral Homes, http://www.politico.com/f/?id=00000156-9f0a-d073-a5d7-df9ef3920001, a federal district court rejected a EEOC claim on RFRA grounds. I'm a bit puzzled, though, by the court's reasoning, and I wanted to ask what fellow list members thought.
1. First, the facts: Harris Funeral Homes, 95% owned by Thomas Rost, has a dress code: Men are to wear traditional male suits with neckties, while women are to wear skirt-suits. (The district court concludes that this dress code violates Title VII's ban on sex discrimination.) Anthony Stephens worked for several years for Harris Funeral Homes, but then began transitioning to female, under the name of Amiee Stephens; when Harris learned that Stephens was going to insist on wearing skirt-suits to work, Harris fired Stephens. 2. The EEOC sued, claiming this was impermissible sex-stereotyping discrimination under Price Waterhouse, because Stephens was fired for insisting on wearing stereotypically female clothing. Rost argued that requiring him to have the business represented by someone whom Rost believes to be male wearing distinctively female clothing would violate Rost's religious beliefs: Rost believes "that the Bible teaches that God creates people male or female." He believes that "the Bible teaches that a person's sex is an immutable God-given gift and that people should not deny or attempt to change their sex." Rost believes that he "would be violating God's commands" if he were to permit one of the Funeral Home's funeral directors "to deny their sex while acting as a representative of [the Funeral Home]. This would violate God's commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift." Rost believes that "the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman." Rost believes that he "would be violating God's commands" if he were to permit one of the Funeral Home's biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost "would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift." (Rost says that he doesn't care what Stephens wears off-duty; Rost's objection is to what he perceives as Stephens's cross-dressing while representing Harris to customers.) 3. The court assumes without deciding that the EEOC has a compelling interest in "protecting employees from gender stereotyping in the workplace." But it concludes that the EEOC hasn't shown that its position is "the least restrictive means of eliminating clothing gender stereotypes at the Funeral Home under the facts and circumstances presented here." In particular, the court says, "couldn't the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions." And the court notes that this dress code would be "similar to the gender-neutral pants, business suit jackets, and white shirts that the male 18 and female Court Security Officers in this building wear." 4. Now my question: Let's say the court's remedy is indeed compatible with Rost's religious beliefs. (Some people do believe that their religion forbids women from wearing pants, but let's assume that this isn't Rost's view, and that he perceives pantsuits as suitable for both men and women who are representing his business to the customers.) That might bear on what injunction would be issued; but since the EEOC only asked for an injunction "enjoining Defendant Employer, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any unlawful practice which discriminates against an employee or applicant because of their sex, including on the basis of gender identity," that injunction wouldn't even be violated by the court's pants-and-jackets alternative, right? And beyond that, the EEOC is seeking that Stephens be compensated for the dismissal (as the court acknowledges, stressing that part of the burden on Harris if liability is found would be "the economic consequences for the Funeral Home could be severe - having to pay back and front pay to Stephens in connection with this case"). How would the proposed new dress code serve the EEOC's interest in making sure that people who were discriminated against based on sex stereotyping are compensated? After all, the EEOC wasn't even involved in the case when Stephens was dismissed. Rost had the opportunity, if he wanted it, to implement the court's proposed gender-neutral dress code, but he didn't take that opportunity. What bearing would this proposed new dress code have on whether the EEOC should prevail in getting Stephens compensation for an action that the court agrees was discriminatory - enforcing the sex-based dress code (which, I note again, the court says is a violation of Title VII under Sixth Circuit precedent and under Price Waterhouse, despite Ninth Circuit precedent to the contrary)? I'd love to hear what people think, since I'll be blogging on the case shortly, and don't want to get it wrong. Thanks, Eugene
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