It’s enough to send Dominionist attorneys scrambling.  Despite efforts in the Trump era to abridge the rights of transpeople to exist, higher courts continue to operate without a religious agenda.  The latest decision on March 7, 2018 favored a transwoman who filed suit against an employer who terminated her because of her decision to transition.

The case titled, EEOC v. R.G. &. G.R. Harris Funeral Homes, goes farther than just siding with the intervenor, Aimee Stephens.  It addresses other issues with respect to inequities and what could and could not be legally accepted as “ministry”.  It’s worth a close look, even in summary.

The decision comes less than 4 months after another surprise case, that of Dr. Rachel Tudor v. Southeastern Oklahoma State University and the Regional University System of Oklahoma where the transgender plaintiff prevailed in a district court with a jury of residents in one of the most staunchly Republican and fanatically Evangelical states in the country.  The Tudor case addressed discrimination on the basis of sex in Title VII of the Civil Rights Act.¹ So did this EEOC case.

 

BACKGROUND

Aimee Stephens had worked at R.G & G.R. Harris Funeral Homes (abbreviated in some court documents as RGGR) since October 1, 2007 and was serving as a Funeral Director/Embalmer from April 2008 to August 2013 while presenting as a male.

The website for RGGR posted as its mission statement on its website that its “highest priority is to honor God in all that we do as a company and as individuals.”  The primary owner, Thomas Rost, had been a declared “Christian” for 65 years and stated that “God has called him to serve grieving people” and “his purpose in life is to minister to the grieving.”²

This appeal to one’s own occupation as a “ministry” is common to Evangelical churches.  In the Evangelical mind, virtually any legal business could be treated as a “ministry”.   There are tradesmen who do much the same, even plumbers and janitors who do their best in order to elicit an opportunity to proselytize with the claim that the customer received exemplary service because “Christians do it better.”³

Of course, what an Evangelical may treat as “ministry” may not square with legally recognized definition.  Just how did this “ministry” conduct operations?  It isn’t affiliated to a church and has no claim of a religious purpose in its articles of incorporation.  It serves the local community regardless of faith and even directs male employees to wear yarmulkes pursuant to Jewish tradition.  It doesn’t decorate rooms with religious figures in order to avoid offending clients of other faiths.  So what does it do to present itself as a “ministry”?  It places a Bible, devotional booklets titled, “Daily Bread” and “Jesus Cards” in the public areas.⁴

RGGR has a dress code.  Male employees who interact with the public must wear suits and ties.  Female employees must wear skirts and business jackets.  Males who interact with the public were provided with free suits and ties, replacing them as needed, spending $470 per year for full-timers and $235 per year for part-timers.  This allowance did not exist for female employees, though in October 2014, it began to provide a $150 per year clothing stipend for female full-time employees and half that amount for female part-timers.  The funeral home did not employ female funeral directors, with only 1 applicant in the past 35 years, rejected as being deemed “not qualified.”⁵

Aimee presented Thomas Rost with a letter on July 31, 2013 stating her intention to transition and would present as a female upon her return from a vacation on August 26, 2013 and attired pursuant to the RGGR dress code.  Aimee continued to work, postponing her vacation.  But just before she departed, Rost told her, “this is not going to work out.”  He offered Aimee a severance package if she “agreed not to say anything or do anything.”  Aimee rejected this offer.⁶

EEOC appealed on January 26, 2017.  ACLU stated concerning the appeal:

“ACLU of Michigan filed a motion to intervene on behalf of Aimee Stephens because of Ms. Stephens’s concerns that her interests might no longer be adequately represented by the EEOC under the new presidential administration. We asked to join the case for her to ensure that her interests are protected as the case progresses and to establish that employers cannot use religion to justify discrimination against transgender employees.”⁷

 

AN ALIGNMENT OF ALLIES

ACLU wasn’t the only entity to file amicus briefs either.  The array of interested parties demonstrated the broad interest of non-Conservative churches and religious minorities in the United States, a demonstration that the plight of transgender employees has not gone unnoticed:

On April 26, 2017, an amicus curiae arguing for reversal of the lower court decision was filed by an alliance consisting of “Seventy-Six Members of the Clergy; Americans United for Separation of Church and State; The Anti-Defamation League; Bend the Arc: A Jewish Partnership for Justice; Central Conference of American Rabbis; Hadassah, the Women’s Zionist Organization of America, Inc.; The Interfaith Alliance Foundation; Keshet; Muslim Advocates; People for the American Way Foundation; Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College / Jewish Reconstructionist Communities; Union for Reform Judaism; The United Synagogue of Conservative Judaism; and Women of Reform Judaism.⁸

An interesting group of legal scholars designated “Private Rights/Public Conscience Project (PRPCP)” filed an amicus brief on the same day, arguing for reversal of the lower court decision. This group describes its mission thus:

“…to examine—through legal research and scholarship, public policy interventions, advocacy support, and academic and media publications—the myriad contexts in which religious liberty conflicts with or undermines other fundamental rights, such as equality. The PRPCP respects the importance of religious liberty, but recognizes that this right exists within a framework of other competing fundamental rights. PRPCP believes that overly broad religious accommodations or exemptions can unsettle the proper balance of competing fundamental rights and impose impermissible burdens on third parties. Staffed by scholars of constitutional law, the PRPCP has an interest in ensuring that the law develops in a manner that strikes the proper balance between religious liberty and other fundamental rights.”⁹

The Dominionist side returned with an amicus brief of its own.  A group consisting of the Public Advocate of the United States, the U.S. Justice Foundation, and Conservative Legal Defense and Education Fund filed in support of the decision of the lower court on May 24, 2017.¹⁰

 

THE PRICE WATERHOUSE/SMITH COMPARISON

One case particularly stood out in the decision of the 6^th Circuit:  Price Waterhouse v. Hopkins (1989), and that in comparison with another case: Smith v. City of Salem (2004) which had also come under the 6^th Circuit.  Price Waterhouse did not concern a transperson but a typical female.  However, the Smith case did.  According to the court:

“The Price Waterhouse plurality, along with two concurring Justices, therefore determined that a female employee who faced an adverse employment decision because she failed to “walk . . . femininely, talk . . . femininely, dress . . . femininely, wear make-up, have her hair styled, [or] wear jewelry,” could properly state a claim for sex discrimination under Title VII—even though she was not discriminated against for being a woman per se, but instead for failing to be womanly enough. See id. at 235 (plurality opinion) (quoting Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1117 (D.D.C. 1985)); id. at 259 (White, J., concurring); id. at 272 (O’Connor, J., concurring).

“Based on Price Waterhouse, we determined that “discrimination based on a failure to conform to stereotypical  gender norms” was no less prohibited under Title VII than discrimination based on “the biological differences between men and women.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). And we found no “reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Id. At 575. Thus, in Smith, we held that a transgender plaintiff (born male) who suffered adverse employment  consequences after “he began to express a more feminine appearance and manner on a regular basis” could file an employment discrimination suit under Title VII, id. at 572, because such “discrimination would not [have] occur[red] but for the victim’s sex,” id. at 574. As we reasoned in Smith, Title VII proscribes discrimination both against women who “do not wear dresses or makeup” and men who do. Id. Under any circumstances, “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Id. At 575.”¹¹

 

THE RFRA DEFENSE

RGGR argued, consistently with the decision of the district court, that the 1993 Religious Freedom Restoration Act (RFRA) overrules the EEOC’s enforcement efforts.  RFRA prohibits government from enforcing a religiously neutral law against an individual if that law substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.¹²

The October 6, 2017 memorandum from Attorney General, Jeff Sessions, sought to strengthen the provisions of RFRA, giving sweeping applicability not only to individuals, but organizations and the representatives thereof.  It essentially set a “hands off” policy for federal law enforcement with respect to issues of religious practice:

“RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition.  Religious adherents will often be required to draw lines in the application of their religious beliefs, and government is not competent to assess the reasonableness of such lines drawn, nor would it be appropriate for government to do so.”¹³

It’s easy to see how the Attorney General’s memo would embolden those on the Religious Right.  But the 6^th Circuit not only examined the merits of the RFRA in terms of (1) applicability, (2) as a prima facie case, and (3) the “Strict Scrutiny Test”; but also the ministerial exemption related to it.

The court laid out 4 criteria concerning the ministerial exemption, citing the case Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012):

1. Does the employee’s title convey a religious as opposed to a secular meaning?  The title “Funeral Director” conveys a secular meaning.
2. Does the employee’s title reflect a “significant degree of religious training” that sets the employee “apart from laypersons?” Aimee did not have religious training.
3. Does the employee serve “as an ambassador of the faith” and serve a “leadership role” within a church, school, and community?”  Aimee’s position did not serve in a pastoral or priestly role at all, but as a “public facing” representative of a funeral home and did embalming.  Citing Conlon v. InterVarsity Christian Fellowship/USA (6th Cir. 2015), the court considered her responsibilities “a far cry” from this purpose which would include “assisting others to cultivate ‘intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.”
4. Does the employee perform “important religious functions” for a religious institution?  The court not only cited the funeral home’s service to those of other faiths, it cited the fact that it remained open on Christian holidays including Easter, and so did not accept that Aimee was a minister or that RGGR was a religious institution.¹⁴

 In which case, RGGR’s claim to a ministerial exemption failed on all criteria.

The higher court did affirm RGGR’s claim that RFRA was applicable.  But does it establish a prima facie case?  The court examined 3 criteria:  the claimant must demonstrate that:

1. The action pertains to a religious exercise.
2. The religious exercise must be a sincere one.
3. The action would substantially burden that exercise.¹⁵

The arguments on both sides reveal much concerning the issue:

“The EEOC argues that the Funeral Home’s RFRA defense must fail because “RFRA protects religious exercise, not religious beliefs,” Appellant Br. at 41, and the Funeral Home has failed to “identif[y] how continuing to employ Stephens after, or during, her transition would interfere with any religious ‘action or practice,’” id. at 43 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008)). The Funeral Home, in turn, contends that the “very operation of [the Funeral Home] constitutes protected religious exercise” because Rost feels compelled by his faith to “serve grieving people” through the funeral home, and thus “[r]equiring [the Funeral Home] to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with—and thus impose a substantial burden on—[the Funeral Home’s] ability to carry out Rost’s religious exercise of caring for the grieving.” Appellee Br. At 38.”

“If we take Rost’s assertions regarding his religious beliefs as sincere, which all parties urge us to do, then we must treat Rost’s running of the funeral home as a religious exercise— even though Rost does not suggest that ministering to grieving mourners by operating a funeral home is a tenet of his religion, more broadly. See United States v.   Sterling, 75 M.J. 407, 415 (C.A.A.F. 2016) (noting that conduct that “was claimed to be religiously motivated at least in part . . . falls within RFRA’s expansive definition of ‘religious exercise’”), cert. denied, 137 S. Ct. 2212 (2017). The question then becomes whether the Funeral Home has identified any way in which continuing to employ Stephens would substantially burden Rost’s ability to serve mourners. The Funeral Home purports to identify two burdens. “First, allowing a funeral director to wear the uniform for members of the opposite sex would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and [the Funeral Home’s] ministry),” and second, “forcing [the Funeral Home] to violate Rost’s faith . . . would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Appellee Br. at 38.  Neither alleged burden is “substantial” within the meaning of RFRA.”¹⁶

The Rost argument seeks to enforce upon employees the dictates he holds himself, irrespective of the rights of any employee.  This is classic Dominionist power-seeking by legal means.  The rejection of this argument will have broad implications for other cases throughout the United States.  But that’s not all.  The court issued this statement:

“But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. Though we have seemingly not had occasion to address the issue, other circuits have considered whether and when to account for customer biases in justifying discriminatory employment practices. In particular, courts asked to determine whether customers’ biases may render sex a “bona fide occupational qualification” under Title VII have held that “it would be totally anomalous . . . to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.”¹⁷

The Strict Scrutiny Test includes 2 criteria:

1. Does EEOC have a compelling interest in pursuit of this case? The court stated, “The undisputed record demonstrates that Stephens has been and would be harmed by the Funeral Home’s discriminatory practices in this case, and the EEOC has a compelling interest in eradicating and remedying such discrimination.”¹⁸
2. Has EEOC demonstrated that burdening Rost’s constitutes the least restrictive means of achieving its objective? The district court ruled that the least restrictive means would be for the funeral home to adopt a gender-neutral dress code and sided with RGGR on that basis, even though both parties rejected the idea of a gender-neutral dress code.  The court rejected the validity of the district court’s ruling, and a case to which transpeople have objected comes into play:  the Supreme Court decision on Hobby Lobby:

 “We also find meaningful Congress’s decision not to include exemptions within Title VII to the prohibition on sex-based discrimination. As both the Supreme Court and other circuits have recognized, “[t]he very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less-restrictive alternatives could exist.” McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 475 (5th Cir. 2014) (citing Hobby Lobby, 134 S. Ct. at 2781–82); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (“It is established in our strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.’” (omission in original) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring))). Indeed, a driving force in the Hobby Lobby Court’s determination that the government had failed the least-restrictive-means test was the fact that the Affordable Care Act, which the government sought to enforce in that case against a closely held organization, “already established an accommodation for nonprofit organizations with religious objections.” See 134 S. Ct. at 2782. Title VII, by contrast, does not contemplate any exemptions for discrimination on the basis of sex. Sex may be taken into account only if a person’s sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise,” 42 U.S.C. § 2000e-2(e)(1)—and in that case, the preference is no longer discriminatory in a malicious sense. Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement.” ¹⁹

In which case, EEOC passes the Strict Scrutiny Test.  The higher court held that the district court erred.

 

ANOTHER STINGING REBUKE

The higher court also determined that the district court erred in the discriminatory clothing allowance claim.  Citing EEOC v. Bailey Co. (6th Cir. 1977), EEOC is limited to the scope of its investigation expected to grow out of a charge of discrimination.  RGGR argued that the clothing allowance claim arose too late and so should not apply.²⁰

However, the higher court made 2 points concerning the applicability of the issue.  First, it was a layperson (legally speaking) who submitted the original charge of sex discrimination and so EEOC could not be limited to more precise criteria.  Second, the original charge did not trigger EEOC to file a lawsuit.  Instead it triggered an EEOC investigation and the lawsuit evolved because EEOC did not obtain voluntary compliance with the law.²¹

The higher court also addressed the facts of Bailey as distinguishable from the case at hand.  Bailey concerned religious discrimination outside the scope of a case of sex and race discrimination.  EEOC v. R.G. & G.R. Harris Funeral Homes was a case of sex discrimination and the clothing allowance issue was also pertinent to sex discrimination.  The higher court also stated, “we have developed a broad conception of the sorts of claims that can be ‘reasonably expected to grow out of the initial charge of discrimination.’”²²

So the district court’s decision of EEOC v. R.G. & G.R. Harris Funeral Homes was reversed and remanded, in other words, sent back down to the district court from which it came, with instruction.²³

This wasn’t just a stinging rebuke to the lower court.  It was a rebuke to the Office of the Attorney General and the Dominionists.  Last November, the case of Dr. Rachel Tudor v. Southeastern Oklahoma State University and the Regional University System of Oklahoma rendered ineffective the appeal to Krystal S. Etsitty, Plaintiff-Appellant, v. Utah Transit Authority.  The latter relied upon the idea that transgender people do not constitute a protected class under Title VII and therefore have no standing to sue for discrimination.²⁴

But last year Etsitty didn’t shield a discriminating employer from litigation under Title VII of the Civil Rights Act.  Now there’s precedent that the Religious Freedom Restoration Act (RFRA) won’t either.

It’s easy to see why Dominionists are so eager to stack the courts with hardline Conservatives at every level.  Anyone would be naïve to think that they will take this laying down.  Very likely we will see an appeal to the U.S. Supreme Court.  But we shouldn’t be surprised if it doesn’t happen with celerity.  After all, the Supreme Court is evenly split and Conservatives would prefer to see a new appointee representing them on the bench for another generation, presumably pocketing the Supreme Court in favor of reversing those decisions that have benefitted the hated LGBT peoples.  It’s also easy to see why Dominionists would also be eager to legislatively gut the Civil Rights Act.

The war is by no means over.  In the meantime, the success of this and the Tudor case goes far to back trans workers in civil rights.  We who are trans should not hesitate to use them while we can, where we must.

_________________________________

REFERENCES:

Featured Image:  Title page for the Appellate decision in EEOC v. R.G. & G.R. Harris Funeral Homes (public record provided by the American Civil Liberties Union) with the seal of the Court of Appeals, 6^th Circuit, and the transgender flag marking the Intervenor.

1. Lynnea Urania Stuart: “A New Phase for Title VII” Trans Muse Planet (November 25, 2017, accessed March 7, 2018) https://thetmplanet.com/a-new-phase-for-title-vii-the-u-s-district-court-bucks-the-attorney-general/.
2. EEOC v. R.G. & G.R. Harris Funeral Homes (U.S. Court of Appeals, 6^th Circuit, March 7, 2018, ACLU, accessed March 7, 2018) Case No. 16-2424, p. 4. EEOC v. R.G. & G.R. Harris Funeral Homes – Ruling.
3. Witnessed by the author who had studied at Ozark Bible College, Joplin MO, in 1977. She dissociated from all Christian churches in 1995.
4. Op. cit.
5. Ibid, p. 5.
6. Ibid, pp. 5-6.
7. (n.a.) “EEOC v. R.G. G.R. Harris Funeral Homes” (ACLU Website, accessed March 7, 2018) https://www.aclu.org/cases/eeoc-v-rg-gr-harris-funeral-homes.
8. Brief of Seventy-Six Members of the Clergy; Americans United for Separation of Church and State; The Anti-Defamation League; Bend the Arc: A Jewish Partnership for Justice; Central Conference of American Rabbis; Hadassah, the Women’s Zionist Organization of America, Inc.; The Interfaith Alliance Foundation; Keshet; Muslim Advocates; People for the American Way Foundation; Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College / Jewish Reconstructionist Communities; Union for Reform Judaism; The United Synagogue of Conservative Judaism; and Women of Reform Judaism as Amici Curiae Supporting Appellant and Intervenor and Reversal (ACLU, April 26, 2017) Case No. 16-2424. EEOC v. R.G. & G.R. Harris Funeral Homes – Ruling.
9. Brief of Amicus Curiae Private Rights / Public Conscience Project In Support of Appellants. (ACLU, April 26, 2017) Case No. 16-2424. EEOC v. R.G. & G.R. Harris – Reply Brief of Intervenor Aimee Stephens.
10. Brief Amicus Curiae of Public Advocate of the United States, U.S. Justice Foundation, and Conservative Legal Defense and Education Fund in Support of Appellee and Affirmance (ACLU, May 24, 2017) Case No. 16-2424. EEOC v. R.G. & G.R. Harris – Amicus Brief in Support of Appellee by Public Advocates of the United States, et al.
11. EEOC v. R.G. & G.R. Harris Funeral Homes (U.S. Court of Appeals, 6^th Circuit, March 7, 2018) Case No. 16-2424, p. 10.
12. Ibid, p. 22.
13. Federal Law Protections for Religious Liberty (October 6, 2017), p. 4. (Memo Office of the Attorney General, October 6, 2017) https://www.justice.gov/opa/press-release/file/1001891/download. f Lynnea Urania Stuart. “Time For a New Religion?” Transpire October 17,. 2017, accessed March 7, 2018) https://lynneauraniastuart.wordpress.com/2017/10/17/time-for-a-new-religion/.
14. Op. cit., p. 25.
15. Ibid, p. 28.
16. Ibid, p. 28, 29.
17. Ibid, p. 29.
18. Ibid, p. 39.
19. Ibid, p. 43.
20. Ibid, p. 45.
21. Ibid, p. 46.
22. Ibid, pp. 47, 48.
23. Ibid, p. 49.
24. Lynnea Urania Stuart. https://thetmplanet.com/a-new-phase-for-title-vii-the-u-s-district-court-bucks-the-attorney-general/.