EEOC's Trans Bias Win Exposes Shakiness Of RFRA Defense

Law360—Vin Gurrieri

The Sixth Circuit’s groundbreaking decision Wednesday that a funeral home owner’s religious beliefs didn't shield him from a U.S. Equal Employment Opportunity Commission suit claiming he illegally fired a transgender employee serves as a clear warning to employers that the Religious Freedom Restoration Act is a questionable tool to defend against trans discrimination suits, experts say.

In its ruling, the Sixth Circuit held that R.G. & G.R. Harris Funeral Homes Inc. violated Title VII by firing funeral director Aimee Stephens after she informed owner Thomas Rost that she was transitioning from male to female and wanted to dress in women’s clothing at work.

The panel also determined that Rost wasn't entitled to a defense under RFRA, a 1993 federal law that blocks the government from enforcing a religiously neutral law that “substantially burdens” people’s “religious exercise” unless that law is the least restrictive way to further a compelling government interest, which in this case was the EEOC’s interest in enforcing anti-discrimination laws.

Lynly Egyes, litigation director at the Transgender Law Center, said Wednesday that the advocacy group is “thrilled” with the Sixth Circuit’s decision since it affirms that transgender people are protected under Title VII.

“One of the things that’s also important about the Sixth Circuit’s case is that it also states that people can’t be fired under the facade of religious liberty,” Egyes said. “Title VII is very clear and the court’s decision was incredibly clear about people not being able to use religious liberty as a reason for firing transgender people.”
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The ruling by the Sixth Circuit overturned a portion of U.S. District Judge Sean F. Cox’s 2016 ruling that the EEOC’s enforcement action burdened Rost’s free exercise of religion and that Title VII’s bar on discrimination based on sex, which the EEOC had argued let Stephens act and dress like a woman, was not the least restrictive means of protecting her rights. The lower court suggested that the EEOC could have achieved its goals by proposing that the funeral home adopt a gender-neutral dress code.

But far from being too restrictive of Rost's rights, Title VII’s requirement that he tolerate Stephens’ gender identity didn’t “substantially” burden his religious beliefs, the Sixth Circuit said, rejecting Rost’s argument that letting Stephens wear women’s clothing would “create distractions” for the funeral home’s customers “and thereby hinder their healing process,” and that making Rost tolerate her transition would push him to leave the funeral industry and “end his ministry to grieving people.”

Instead, the Sixth Circuit in part said that an individual asserting the RFRA defense can’t rely on customers’ presumed biases to establish a substantial burden under RFRA, and that “tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

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David Lopez of Outten & Golden LLP — the EEOC’s general counsel when the case was filed in 2014 as one of the agency’s first two lawsuits accusing an employer of sex discrimination against a transgender individual — said he was pleased with the decision and that the Sixth Circuit got it right.  

“This is the latest in a series of groundbreaking decisions recognizing that Title VII’s prohibitions on discrimination because of sex covers the LGBT community — in this case gender identity,” Lopez said. “The RFRA part obviously was important because ... it was a new defense that was asserted in the context of this case that thankfully the Sixth Circuit rejected.”

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The case is EEOC v. R.G. & G.R. Harris Funeral Homes Inc., case number 16-2424, in the U.S. Court of Appeals for the Sixth Circuit.