Employer's Religious Rights Win Out Over Transgendering Employee's RIghts

Anthony Stephens began working as a Funeral director for R.G. & G.R. Harris Funeral Homes in 2007. Six years later Stephens gave the funeral home a letter stating:

"Dear Friends and Co-Workers:

"What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. . ..I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all these years . . ..

"I have been in therapy for nearly four years now and have been diagnosed as a transsexual. I have decided to become the person that my mind already is. Toward that end, I intend to have sex reassignment surgery. The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire. . .. It is my wish that I can continue my work at R.G. & G. R. Harris Funeral Homes doing what I have always done, which is my best!"

There was no question that Stephens intended to abide by the funeral home’s dress code for female funeral directors. After receiving the letter the business owner, Thomas Rost, decided to fire Stephens. There was no dispute that Rost based his decision on sincerely held religious beliefs.

The legal issue was whether the federal Religious Freedom Restoration Act (“RFRA”) trumped Stephens’ rights under Title VII, the federal anti-discrimination in employment law. Title VII prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” The U.S. Supreme Court has recognized that sex discrimination may manifest itself in stereotypical notions as to how women and men should dress and present themselves in the workplace. It’s referred to as sex-stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id.

The funeral home based its RFRA defense on the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). The majority in Hobby Lobby held:

“[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b)." Id. at 2761.

The district court applied the following analysis: (1) whether the law at issue substantially burdens the Funeral Home’s exercise of religion (Hobby Lobby, 134 S.Ct. at 2775); (2) if so, whether the Government can meet its burden of showing that application of the burden “to the person is (a) in furtherance of a compelling governmental interest; and (b) the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.

Finding that Title VII substantially burdened the funeral home’s exercise of religion The court next assumed that the EEOC met its first burden of showing the anti-discrimination provisions in Title VII furthered a compelling governmental interest and, therefore, proceeded to the least restrictive means burden analysis. The court decided that the EEOC failed to satisfy this burden. The court’s analysis seems to hinge on a question it asked: “[C]ouldn’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?” The funeral home’s owner, Mr. Rost, had testified in deposition that female funeral director’s could acceptably wear a business pants suit. Stephens agreed. To the court the issue was whether Stephens had a right to comply with the funeral home’s dress code (skirt and matching jacket) and decided she did not if she could be accommodated by being allowed to wear a business pants suit -- less restrictive means of enforcing Title VII.

Consequently, the court held that the funeral home was entitled to an RFRA exemption from Title VII. The EEOC has thirty days to appeal the decision to the Sixth Circuit Court of Appeals. Given its straightforward and undisputed facts, this is an excellent case for the Supreme Court to revisit its decision in Hobby Lobby in order to provide guidance on what is a re-occurring issue.

The case is EEOC v. RG & GR Harris Funeral Home, Inc. (E.D. Mich., Aug. 19, 2016).

Republicans Discriminate Against LGBT Americans

On July 21, 2014 President Obama signed an Executive Order prohibiting discrimination against Americans working for companies doing business with the federal government based on sexual orientation and gender identity. What a common sense decision. Why should employers be permitted to fire a fellow American because they are gay or because of their gender identity? There is no excuse for employment discrimination, period. Sure, employers should be permitted to "discriminate" between employees based on work quality or production, but because of who they are? Please.

Leave it to our current Republican Congress to authorize discrimination against people because of their sexual orientation and identity. On April 29, 2016, the Republican-controlled House Armed Services Committee voted to allow such discrimination. Why stop there? Why not not approve discrimination based on religion, color or any other trait?

We don't need bigots in Congress. Vote a straight (no pun intended) Democratic ticket in November.

Equal Protection, LGBT and Religious Freedom

             An Executive Order signed by President Obama took effect on April 8, 2015 barring discrimination against members of the LGBT community working on federal projects. The Office of Federal Contract Compliance Programs is responsible for enforcement of the President’s initiative. When will Congress finally pass legislation banning discrimination on the basis of sexual orientation and gender identity? Not until Republicans are replaced with enlightened politicians who understand that equality means equality for everyone.

            Over the last few weeks I corresponded with radio talk show host Peter Heck of Indianapolis about Indiana’s “religious freedom” law. I must have baffled him in my final position statement when I pointed this out to him:

I think the freedom argument works both ways. A person isn't free if the government sanctions discrimination against them. That's tyranny. Under your argument anti-discrimination laws are tyrannical because the government is forcing people to behave a certain way. 

Moreover, the RFRA was enacted to appease one and only one religion. Indiana legislators I believe did not intend to protect the rights of the Muslim community, some members of which can now deny with impunity business services to "infidels" based on conscience. 

I note that Indiana's anti-discrimination law states that "[i]t is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations ***." The statute then identifies the currently recognized protected classes (race, religion, gender, etc.). Yet, certain Indiana citizens are not covered by this Indiana public policy despite the fact that the public policy encompasses "all of its citizens." I would argue that any law that sanctions discrimination against any citizen violates the public policy. 

Providing business services to all citizens is the price paid for participation in society. If a person objects on the basis of "religious freedom" then the solution is clear: live like the Amish, separate and apart from mainstream society.

            He had no response and that was the end of the discussion. For me at least it’s easy to see why. If all citizens are guaranteed equal opportunity employment rights, then how can the law not provide equal rights to any segment of the citizenry? Yet that is what employment anti-discrimination laws accomplish --  courts interpret them to allow discrimination against the LGBT community. Equal does not mean equal when it comes to protection against employment discrimination. Perhaps the key to changing the common law is to make an equal protection argument. This I will do the next time an opportunity arises.

Transgender Discrimination is Illegal

Transgender discrimination is illegal. Why? Because it is gender discrimination under Title VII of the Civil Rights Act (and O.R.C. 4112.02, Ohio’s anti-discrimination statute). Two federal appellate courts have agreed. So has the Equal Employment Opportunity Commission. These courts (the 9^th and 6^th appellate circuits) and the EEOC riffed off the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins. There, the Court said that making negative employment decisions based on a perception that the employee does not conform to the “gender stereotype” is discrimination under Title VII.

Transgender discrimination will rise as the labor force absorbs more transgender individuals. The law (and employment lawyers like me) will be there to protect them.