No Title VII violation in firing transgender employee

Funeral Director Amiee (nee Anthony) Stephens was undergoing a gender transition from male to female. The funeral home’s owner admits that he fired Stephens because Stephens intended to “dress as a woman” while at work. EEOC sued the funeral home claiming a Title VII violation. In a 56-page slap-down, a federal district judge granted summary judgment to the funeral home today.

The main take-away: Applying Title VII to the funeral home is not the least restrictive way to protect employees from gender stereotyping in the workplace. EEOC v. R.G. & G.R. Harris Funeral Homes (E D Mich 08/18/2016).

EEOC had two basic legal theories.

First theory: Gender stereotyping


The funeral home had a sex-specific dress code, with men required to wear one thing and women required to wear another. The district court held that this dress code could not operate as a defense to the EEOC's claim because of the court's understanding that the 6th Circuit would not allow it.

It appears unlikely that the [Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004)] court would allow an employer like the employer in [Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc)] to avoid liability for a Title VII sex-stereotyping claim simply by virtue of having put its gender-based stereotypes into a formal policy.

Second theory: Religious Freedom Restoration Act of 1993 (RFRA)

The district court held that the funeral home is protected by RFRA.

  1. The Funeral Home, a for-profit, closely-held corporation, is entitled to protection under RFRA.
  2. RFRA applies to the EEOC.
  3. The law at issue “substantially burdens” the Funeral Home’s exercise of religion. The funeral home's owner believes that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.” The owner also believes that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.”
  4. The court assumed that the EEOC's sex stereotyping rules further a compelling governmental interest.
  5. EEOC has not met its burden of showing that application of the burden to the funeral home is the least restrictive means of protecting employees from gender stereotyping in the workplace.
Indeed, the EEOC’s briefs do not contain any discussion to indicate that the EEOC has ever (in either the administrative proceedings or during the course of this litigation) explored the possibility of any solutions or potential accommodations that might work under the unique facts and circumstances presented here. As a practical matter, the EEOC likely did not do so because it has been proceeding as if gender identity or transgender status is a protected class under Title VII, taking the approach that the Funeral Home cannot prohibit Stephens from dressing as a female, in order to express her female gender identity. This is one of the first two cases that the EEOC has ever brought on behalf of a transgender person. The EEOC appears to have taken the position that the only acceptable solution would be for the Funeral Home to allow Stephens to wear a skirt while working as a funeral director at the Funeral Home in order to express Stephens’s female gender identity.
The EEOC wants Stephens to be able to dress in a stereotypical feminine manner. If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender “irrelevant”), the EEOC’s manner of enforcement in this action (insisting that Stephens be permitted to dress in a stereotypical feminine manner at work) does not accomplish that goal.