I agree with Eugene. The whole point of uniform policies (other than purely functional ones like hard hats) relates to the message the clothing sends. Here, the funeral home owner had very particularized employee dress requirements in keeping with the solemnity and sensitivity required to help grieving families who he sought to serve consistent with his religious conviction. Is it unreasonable for the owner to believe it goes contrary to his faith for him to knowingly put his customers, many of whom share his religious beliefs, in awkward situations at an extremely vulnerable time?
Several and perhaps many/most states require a funeral home employee accompany the body continuously which includes being physically present at church services and burials. So imagine a funeral home employee who violated the dress policy by wearing a swim suit and flip flops to church funerals. I think few would say such an employee can't be fired if the funeral home owner discharges the employee because he or she believes it is offensive for its representative to dress that way at funerals as a religious matter. Shift the hypo to the present case. Now imagine a mother whose husband has died having to answer her 6-year old child who asks "mommy, why is there a man dressed in a skirt following daddy's body around?" If the swimsuit hypo is rational/defensible, business owners of faith should be able to argue "with a straight face" that their faith moves them to prevent this similarly uncomfortable situation as well. It would be no answer to the family or the business owner to say, as the administration has argued in NC, that the employee who was born male is "actually" a woman now (or always was) when neither the owner or the grieving family believe it. One more hypo. Imagine an owner of a swimming pool open to dues paying members has a policy of allowing its male lifeguards to work shirtless but not its female lifeguards. Does a female lifeguard who identifies as a man, but has not had any surgery, have a claim under Title VII if she is fired for going to work topless one day? If so, does such a claim defeat a RFRA defense if the owner, as a matter of faith, does not want to subject customers to seeing topless women at his or her business (regardless of how they self identify)? Roger Severino On Aug 18, 2016, at 21:00, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I don’t think the substantial burden argument is quite that weak. One’s employees who speak to customers speak on one’s behalf. I would think that, if for instance, a Quaker who opposed deadly self-defense (not all do, I think, but some do) might be substantially burdened by a (hypothetical) employment rule that required him to let his customer-facing employees open-carry guns while on the job. One can then ask whether there’d be a compelling government interest in enforcing such a rule, but I think the substantial burden claim would be strong: The very people who are speaking on his behalf to customers are at the same time conveying a pro-violence message that he doesn’t want his business to convey. Likewise here, though again it may be that the business should lose under strict scrutiny. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, August 18, 2016 3:18 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Successful RFRA defense in EEOC case against funeral home that fired a male-to-female transgender employee for insisting on wearing a skirt suit to work 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<mailto: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<mailto: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<mailto: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.
