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Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.
In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”
The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.
The Religious Freedom Restoration Act prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible. In Burwell v. Hobby Lobby Stores, the U.S. Supreme Court held that closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act.
In dissenting in Hobby Lobby, Justice Ginsberg argued that the Hobby Lobby majority, which permitted a company to opt out of the Affordable Care Act’s contraceptive mandate on religious grounds, was a dangerous precedent because it would enable any company to opt out of any non-tax law on the basis of any sincerely held religious belief. By permitting the Funeral Home to opt out of Title VII, this is exactly what the federal court did in this case.
[Thomas] Rost [the owner and operator of the Funeral Home] believes “that the Bible teaches that God creates people male or female.” He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s funeral directors “to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost believes that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.” …
Rost has a sincere religious belief that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at one of his funeral homes because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift. Rost objects on religious grounds to: 1) being compelled to provide a skirt to an employee who was born a biological male; and 2) being compelled to allow an employee who was born a biological male to wear a skirt while working as a funeral director for his business. To enforce Title VII (and the sex stereotyping body of case law that has developed under it) by requiring the Funeral Home to provide a skirt to and/or allow an employee born a biological male to wear a skirt at work would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely-held religious beliefs.
No matter where you stand on LGBT issues, we should all be troubled by a decision that permits an employer to opt out of an employment law because of a religious belief.
What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Or believes that women should be paid less than their male equivalents? Or doesn’t think women should work at all? Or sincerely believes that God, and not OSHA, cares for the safety of its employees, and that if an employee loses a limb it was God’s will? Or doesn’t believe in overtime pay?
You get my point.
Religious freedom as an opt out from employment laws is a dangerous construct. It’s easy to look at this issue through the lens of a political hot potato such as LGBT rights, the opponents of which often wrap themselves in the cloak of religion. The rationale of this case, however, does not limit itself to LGBT rights, no matter what the court might say to the contrary. Our constitution guarantees freedom of religion. We irreparably damage this important principle when we permit a private business, under the guise of religious freedom, to opt out, without penalty, from employment laws with which it disagrees or finds offensive.
Written by Jon Hyman, a partner in the Labor & Employment group of Meyers Roman Friedberg & Lewis. For more information, contact Jon at (216) 831-0042, ext. 140 or firstname.lastname@example.org. Connect with me on Twitter, LinkedIn, and Facebook.
Jon is admitted to practice in the State of Ohio, in addition to the United States Court of Appeals for the Sixth Circuit, the United States District Courts for the Northern District of Ohio, Southern District of Ohio, the Northern District of Oklahoma, and Northern District of Illinois, and the United States Bankruptcy Court for the Northern District of Ohio.He is a 1997 honors graduate of Case Western Reserve University School of Law and a 1994 honors graduate of Binghamton University.