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

[Levinson, Sanford V]

I note for the record, with fully snarky intentions, that I know of no 
imaginative rendering of Moses or Jesus that depicts them in suits, nor is it 
my impression that modern Popes dress gender appropriately.

The argument basically boils down to "customer's" veto, and I see no difference 
between this and the complaint that "grandpa would have been outraged by having 
a black person attend to his dead body."

Sandy

Sent from my iPhone

On Aug 18, 2016, at 7:16 PM, Roger Severino 
> wrote:

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 
> 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] On Behalf Of Marty Lederman
Sent: Thursday, August 18, 2016 3:18 PM
To: Law & Religion issues for Law Academics 
>
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 

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

[Roger Severino]

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 
> 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] On Behalf Of Marty Lederman
Sent: Thursday, August 18, 2016 3:18 PM
To: Law & Religion issues for Law Academics 
>
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 

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

[Volokh, Eugene]

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] On Behalf Of Marty Lederman
Sent: Thursday, August 18, 2016 3:18 PM
To: Law & Religion issues for Law Academics 
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 
> wrote:
In today’s EEOC v. R.G. & G.R. Harris Funeral Homes, 
http://www.politico.com/f/?id=0156-9f0a-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 

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

[Steven Jamar]

I supported RFRA for years. I am becoming a supporter of Smith.

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."

Naomi Klein





> On Aug 18, 2016, at 6:18 PM, Marty Lederman  wrote:
> 
> 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  > wrote:
> In today’s EEOC v. R.G. & G.R. Harris Funeral Homes, 
> http://www.politico.com/f/?id=0156-9f0a-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 

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

[Marty Lederman]

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  wrote:

> In today’s *EEOC v. R.G. & G.R. Harris Funeral Homes*,
> http://www.politico.com/f/?id=0156-9f0a-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.