[Eugene Volokh] Successful religious freedom defense in Title VII case brought by transgender employee

In yesterday’s EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. decision, a federal district court held in favor of an employer who was sued under Title VII by the Equal Employment Opportunity Commission for firing a male-to-female transgender employee. The employer, a funeral home, required male employees to wear traditional male suits and required female employees to wear skirt-suits. When the employee insisted on wearing skirt-suits, as part of the process of transitioning from male (Andrew Stephens) to female (Amiee Australia Stephens), the employer dismissed the employee; the EEOC claims that this was sex discrimination. I think the decision is wrong, but for complicated reasons; I hope you can bear with me while I try to lay them out.

1. To begin with, let’s understand the core Title VII legal theory that the court saw as involved in this case. Title VII doesn’t on its face ban discrimination against people who are transgender; it bans discrimination based, on among other things, sex. But courts have held (correctly, I think) that this ban includes the employer engaging in “sex-stereotyping” practices, which is to say treating men and women differently based on expectations of how the different sexes should behave. For instance, in the leading Supreme Court precedent on this theory, Price Waterhouse v. Hopkins (1989), Ann Hopkins argued that Price Waterhouse passed her over for partnership not just because she was a woman (Price Waterhouse did have some female partners) and not just because she was seen as aggressive (Title VII doesn’t ban discrimination based on such traits), but also because she was seen as an aggressive woman, and was judged harshly for this in a way that aggressive men were not. Title VII violation, the court held: The employer generally can’t have one standard of proper behavior for male employees and another for female employees.

Now where does this leave sex-specific dress codes (and related grooming standards, such as for hair length, jewelry and makeup)? In the 1970s, courts generally concluded that sex-specific dress codes, at least so long as they followed traditional standards of professional dress, didn’t violate Title VII, because Congress couldn’t have intended to displace such well-accepted — and, in the courts’ view, harmless — different treatment. Indeed, Barker v. Taft Broadcasting Co. (1977) so held in the 6th Circuit, which is where the Harris Funeral Homes case is being litigated; other courts, cited by Barker, had held the same. And in 2006, an 11-judge en banc panel of the 9th Circuit agreed with that view, upholding a policy that required women to wear some makeup and banned men from wearing any. (The vote was 7-4; for those who count such things, the majority upholding the sex-based grooming policy consisted of four men and three women, and the dissenters were three men and one woman.)

But the 6th Circuit, in Smith v. City of Salem (2004), said that “After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” And based on this, the district judge in the case we’re discussing likewise concluded that sex-specific dress codes normally violate Title VII, and that it would normally be illegal for Harris to fire Stephens for insisting on wearing clothing that Harris saw as not male-appropriate.

2. But then came the Religious Freedom Restoration Act, through which Congress required courts to give religious exemptions even from generally applicable federal statutes. The rule is that if (A) an objector has a sincere religious belief and (B) a federal law substantially burdens the objector’s ability to act consistently with that belief, then the government must grant an exemption from the law unless (C) the law serves a compelling government interest and (D) denying the exemption is the least restrictive means of serving that interest. (More on that in this post.) The court concluded, I think rightly, that the RFRA applies to Title VII just as it does to other federal statutes, though, as with other federal statutes, exemptions from Title VII can still be denied if “strict scrutiny” (the legal term for elements C and D of the test above) is satisfied.

A. Harris is a family-owned corporation, with 94.5 percent of the shares owned by Thomas Rost and the rest by his children. And (paragraph break ad