Exactly, Eugene. The employer already has available to it the "alternative" the judge creatively surmised. The employer himself didn't propose it, no doubt because he would object to Stephens not wearing a tie (not to mention other indicia of the fact that she's a woman, e.g., make-up), and to requiring all other employee to wear the court's proposed unisex uniform.
The employer's own proposed "less restrictive alternatives," on the other hand, are the *reductio ad absurdum *examples that flow from Alito's misbegotten reasoning in *Hobby Lobby*: Moreover, the government could employ other alternatives to ensure that Stephens retains employment or the benefits of employment. For example, *the federal government could directly hire Stephens and allow Stephens to dress however Stephens wants; the government could pay Stephens a full salary and benefits from the time of Stephens’s discharge until Stephens acquires comparable employment; or the government could provide incentives for other employers (including, but not limited to, employers in the funeral industry) to hire Stephens and allow Stephens to dress as a member of the opposite sex on the job*. See Hobby Lobby, 134 S. Ct. at 2780 (“[F]or the Government to assume the cost of providing the four contraceptives at issue to any women who were unable to obtain them . . . due to their employers’ religious objections[] . . . would certainly be less restrictive of the plaintiffs’ religious liberty”). With all of these alternatives available to the government, the EEOC cannot meet RFRA’s least-restrictive means requirement and thus cannot satisfy strict scrutiny. I wouldn't have even had the gall to put that on a law school exam, it's such a ridiculous notion of what the statute requires (but not inconsistent with *Hobby Lobby*!). I therefore agree that the LRM analysis in opinion is absurd. But so, I think, is the "substantial burden" discussion. This is what we might expect as a result of the complicity arguments proffered in the contraception cases: Now, an employer argues with a straight face that his religion would prohibit him from retaining an employee who wears a skirt, if that employee was born with male reproductive organs, even if compelled to do so by law. What the contraception litigation has wrought . . . . On Thu, Aug 18, 2016 at 5:59 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 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 > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
