Is a Sex-Specific Dress Code Enforceable?

May 26, 2017

On September 25, 2014 the Equal Employment Opportunity Commission (EEOC) filed a complaint against R.G. & G.R. Harris Funeral Homes Inc. (Harris) in the US District Court for the Eastern District of Michigan (District Court),  under Title VII of the Civil Rights Act of 1964.  The complaint alleged that Harris had discriminated against a transgender employee, Aimee Stephens, because of her sex.  Stephens began working at Harris as a Funeral Director/Embalmer in October 2007.  In July of 2013, Stephens told her employers and coworkers that she would be undergoing gender reassignment surgery – transitioning from a male to a female.  She wanted to begin dressing in appropriate female business attire at work.  About two weeks after her announcement, she was fired because Harris said what Stephens was proposing was unacceptable.

The complaint goes on to allege that Stephens’ firing was motivated by sex-based considerations – especially due to the fact that she was transgender.  She was deprived of equal employment opportunities and adversely affected because of sex discrimination.  It was also alleged that Harris discriminated against its employees based on sex by providing a clothing allowance to male employees but not female employees.

On November 19, 2015 Harris moved to dismiss the complaint.  The District Court held that the EEOC had stated a “stated a sex-stereotyping gender-discrimination claim under Title VII,” and therefore the motion was denied.

In April 2016 both parties moved for summary judgment.  In an opinion signed August 18, 2016 the District Court granted Harris’ motion in part, and denied the EEOC’s motion.  The District Court held that Harris cannot use its sex-specific dress code as a defense to a Title VII sex discrimination claim but that Harris met its initial burden of showing that enforcement of Title VII would impose a substantial burden on its ability to run its business in accordance with its religious beliefs.  Therefore, since Harris was alleging it was entitled to an exemption under the Religious Freedom Restoration Act (RFRA), the burden had shifted to the EEOC to show that applying the Title VII burden to Harris “1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.”  The District Court acknowledged that protecting an employee from gender stereotyping was a compelling government interest: however, the EEOC had not shown that the relief they were seeking was the least restrictive means of furthering the interest.  The District Court also reiterated that gender identity and transgender status are not protected classes under Title VII.

The EEOC has appealed the decision to the Sixth Circuit Court of Appeals (Sixth Circuit).  In the EEOC’s brief filed February 10, 2017 it requests an oral argument to address the novel issue of whether the RFRA is a valid defense to the EEOC’s Title VII sex-discrimination enforcement action – and whether Title VII’s prohibition against sex discrimination includes discrimination based on transgender status and gender identity.

In its reply brief filed May 17, 2017 Harris claims that it was allowed to require a transgender female employee to dress according to a “sex-specific” dress code.  Harris further claims that the dress code does not constitute sex stereotyping, as it is enforced on both sexes evenly.  Further, Harris claims that even if the dress code violated Title VII, the RFRA exempts it from enforcement because it would go against Harris’ religion to allow an employee that was born male to wear female attire at work.

The EEOC and Stephens have garnered support from several different organizations as Amici Curiae.  In a brief filed on April 26, 2017, Seventy-Six Members of the Clergy, Americans United For the Separation of Church and State, The Anti-Defamation League, Bend the Arc: a Jewish Partnership for Justice, The Interfaith Alliance Foundation, Muslim Advocates, and 9 other groups joined together to argue that the RFRA cannot operate as a defense to Title VII sex-discrimination if it would impose costs on third parties.

This is just one of several Amici Curiae briefs that have been filed on behalf of the EEOC and Stephens.  The briefs are coming from leaders and advocates from different faiths and religious backgrounds, urging the Sixth Circuit to rule that Harris should not be allowed an exclusion from the enforcement of Title VII by operation of the RFRA.  It will be interesting to see how the Sixth Circuit rules; hopefully it will make the right call.

E.D. Michigan Docket

6th Circuit Docket

E.D. Michigan Decision

EEOC 6th Circuit Brief

Amici Curiae Brief


Photo credit: REUTERS/Jonathan Drake

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