In a brief before the U.S. Supreme Court in Harris Homes v. EEOC, the Department of Justice argued that employers should be allowed to force female employees to wear skirts, if the employer was Christian.
On Aug. 19, 2019, the left-leaning website Shareblue Media published an article with the headline “[Department of Justice] Says Christian Employers Should Be Allowed to Make Women Wear Skirts,” which reported that:
This term, the Supreme Court will hear a case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (EEOC), to determine whether trans employees can be fired simply for being trans…Currently, the case is before the Supreme Court, to be heard in the 2019-2020 term, and the government has flipped sides. Last week, the Department of Justice wrote a brief arguing the case that the EEOC won in the appellate court should now be reversed, urging the Court to hand a victory to the Christian funeral home owner.
The DOJ’s stance is so appalling that the EEOC refused to sign onto the brief. The argument of Solicitor General Noel Francisco, a Trump nominee, is that Title VII is limited only to discrimination based on “biological sex” only and therefore doesn’t cover the firing of Stephens for being transgender. Put another way, the DOJ is arguing that Title VII applies when, say, women are treated worse at a job then men are, but not when transgender workers are treated worse at work than non-transgender workers.
It gets worse. The DOJ brief endorses the view of the funeral home owner, Thomas Rost, who said “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man” and that he would fire any woman who refused to wear a skirt while at work. You read that right. It’s 2019, and the government is arguing that businesses should be allowed to force women to wear skirts at work as long as a Christian business owner demands it.
We received multiple inquiries from readers about the accuracy of Shareblue’s claim that the DOJ had articulated or supported the view that Christian employers should be legally allowed to force female employees to wear a skirt at work.
The U.S. Supreme Court accepted the case in question for consideration in July 2018. As of August 2019, it was scheduled for oral arguments in October. Based on accounts filed by the employer Harris Funeral Homes, the employee Aimee Stephens, and the DOJ, as well as an earlier Court of Appeals opinion, the following is the rough sequence of events at the heart of this important but at times complicated case.
Employment and termination
In 2007, Stephens was hired by Harris Homes, which has three funeral-home locations in Michigan. Stephens had been born biologically male and assigned that gender at birth, was given the name William Anthony Beasley Stephens, and went by “Anthony.”
In 2013, she informed her employer that she intended to live as a woman, which she had regarded for a long time as her true gender identity, and that as part of that transition, she intended to have gender-reassignment surgery. That would require living and working as a woman for a year first, and Stephens told Harris Homes she would take a vacation, and would “return to work as [her] true self,” with the intention of presenting herself as a woman and complying with the company’s dress code for women by wearing a skirt and suit jacket at work. Male employees were required to wear a suit and tie.
Before she took that vacation, the owner of the company, Thomas Rost, terminated Stephens’ employment. Stephens filed a sex-discrimination complaint with the federal Equality Employment Opportunity Commission (EEOC), alleging that Rost had fired her “due to her sex and gender identity.” (The EEOC also found the company had discriminated against female employees by providing suits for male workers, free of charge, but not providing an equal allowance to women. Harris Homes changed that particular policy in 2014 and now provides all workers a clothing allowance.)
EEOC and the U.S. District Court
The EEOC investigated Stephens’ complaint and ultimately decided to apply to the U.S. District Court for the Eastern District of Michigan in 2014, seeking an injunction against Harris Funeral Homes. The agency alleged that — in violation of federal non-discrimination law — the company had “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [Harris Homes’] sex- or gender-based preferences, expectations or stereotypes.”
The company applied to have the case dismissed, but the District Court denied that motion. However, the court said the EEOC could not claim Title VII discrimination (after Title VII of the 1964 Civil Rights Act) solely on the basis of Stephens’ status as a transgender person, because gender identity was not one of the types of discrimination prohibited by law. (They are: race, religion, sex, national origin, age, disability and pregnancy.)
However, the District Court said the EEOC could bring a claim that alleged Harris Homes had engaged in impermissible “sex stereotyping,” based on the fact that Stephens’ firing was related to her stated intention to not wear the clothes prescribed under the company’s male dress code.
(In a precedent-setting 1988 case called “Price Waterhouse v. Hopkins,” the U.S. Court of Appeals for the D.C. Circuit said evidence of workplace discrimination based on sex and gender stereotypes could be regarded as de facto evidence of sex-based discrimination. That case revolved around a woman who was denied a partnership at the firm, partly because some decision-makers viewed her behavior and demeanor to be insufficiently “ladylike.” The court found that while the discrimination was not, strictly-speaking, based on the mere fact of her sex, it was inextricably linked to her sex, and could not, by definition, have taken place without reference to her sex. As such, the court concluded, it amounted to legally prohibited sex discrimination.)
In the end, the District Court concluded that Harris Homes had indeed engaged in sex discrimination against Stephens on the basis of the “sex stereotyping” claim, but said the company was exempt from federal non-discrimination law based on the protections provided through the Religious Freedom Restoration Act (RFRA), which was signed into law by President Bill Clinton in 1993.
(In the Stephens case, company owner Rost, a devout Christian, posited a religious objection to continuing to employ a person who would use a dress code different from that of an assigned, biological sex at birth, stating: “… The Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man.”)
The EEOC appealed the District Court’s decision before the U.S. Court of Appeals for the Sixth Circuit.
Court of Appeals
In March 2018, the Court of Appeals reversed the District Court’s ruling, finding that Harris Homes did engage in impermissible “sex stereotyping” sex discrimination, and rejecting the company’s claim that sex stereotyping was only impermissible discrimination if it had a disproportionately negative impact on one gender class of employees.
The court also found that Rost had a legitimate right to a religious objection to employing Stephens, but that even the legislation which codified that constitutional right (RFRA) allowed for “greater good” exceptions, where the state has an overriding interest in protecting someone from discrimination, which the court saw as being the case here.
Thirdly, and perhaps most notably, the Court of Appeals also contradicted the District Court’s ruling that the EEOC could not proceed against Harris Homes on the basis of a “pure” discrimination claim. According to the Court of Appeals, gender identity was, in fact, a grounds for a discrimination claim, under federal non-discrimination laws.
In the court’s published opinion, Judge Karen Nelson Moore wrote:
“We also hold that discrimination on the basis of transgender and transitioning status violates Title VII … First, it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex … We ask whether Stephens would have been fired if Stephens had been a [biological] woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.
“… Second, discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping … an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
In July 2018, the U.S. Supreme Court agreed to consider the case and was scheduled to hear oral arguments in early October 2019.
On Aug. 16, the DOJ filed a brief before the U.S. Supreme Court, arguing on behalf of the federal government that the court should reverse the Court of Appeals decision, thus ruling in favor of Harris Homes and against the EEOC. Despite being the federal respondent to the company’s appeal, the EEOC did not sign on to the government’s (that is, the DOJ’s) Supreme Court brief.
The District Court based its ruling on several grounds, as did the Court of Appeals, so it’s important to understand the reasons put forward by the DOJ for asking the Supreme Court to reverse the Court of Appeals decision. After all, the DOJ might be calling for the same outcome as the funeral home, but that doesn’t mean they agree on all issues, and they might be advocating the same outcome for differing reasons.
As outlined in the Aug. 16 brief, the following is a rough summary of the DOJ’s arguments:
- The meaning of “sex” in the original 1964 Civil Rights act was understood to be biological sex, and Congress has declined to explicitly add transgender status to employment non-discrimination legislation over the years. This means the Court of Appeals was wrong in its claim that federal non-discrimination law does implicitly entail transgender status.
- Even if discrimination against a transgender person on the basis of being transgender could be regarded as discrimination on the basis of sex, a claimant must prove that he or she was negatively impacted by that discrimination by comparison with a counterpart of the opposite sex. Since discrimination against transgender persons would negatively impact trans men as much as trans women, this would not be the case. If the Supreme Court accepts that merely considering sex amounts to impermissible sex discrimination, without this element of disproportionate harm, then the court would have to invalidate any and all sex-specific policies, including dress codes and sex-specific bathrooms.
- The argument that discrimination based on transgender status inherently requires impermissible sex stereotyping fails because the basis of that precedent, Price Waterhouse v. Hopkins, did not involve a declaration that any and all sex stereotyping was impermissible, only that evidence of sex stereotyping could be regarded as de facto evidence of sex discrimination. Furthermore, Stephens hasn’t been able to prove that she was disproportionately negatively impacted by comparison with a member of the opposite sex — that is, that (in the DOJ’s language) a biological woman would have been allowed to dress under the male dress code.
Did the DOJ say what Shareblue claimed it said?
As of Aug. 23, oral arguments had not taken place, but so far at least, the DOJ hasn’t argued that “Christian employers should be allowed to make women wear skirts,” as Shareblue’s headline claimed. In fact, the “religious objection” exemption that the District Court afforded Harris Homes and its owner Rost has not formed part of the DOJ’s arguments.
Shareblue claimed that:
“The DOJ brief endorses the view of the funeral home owner, Thomas Rost, who said ‘the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man’ and that he would fire any woman who refused to wear a skirt while at work.”
That is not accurate. The DOJ brief mentions the fact that Rost said this, but does not endorse that view. The actual point the DOJ makes about this, which Shareblue omitted, is that the fact Rost would be equally willing to fire both a biological man and biological woman who both refused to dress under the dress code of their assigned gender shows (in the DOJ’s opinion) that the policy does not favor one sex over the other, meaning it is permissible under federal non-discrimination law.
The DOJ has not endorsed or supported Rost’s biblically founded viewpoint on gender or attire, nor his company’s specific dress code policy. Rather, the DOJ has quite narrowly and specifically argued that the policy does not unfairly favor or burden workers of one sex over the other, and so does not violate non-discrimination law.
Shareblue went on to claim:
“You read that right. It’s 2019, and the government is arguing that businesses should be allowed to force women to wear skirts at work as long as a Christian business owner demands it.”
This is very misleading. Again, the DOJ did not make a religious exemption argument in its Supreme Court brief, and its argument that Harris Homes’ dress code does not unfairly burden one sex over the other is not contingent upon the particular religious faith of the employer. So the conditional statement “as long as a Christian business owner demands it,” is a highly misleading representation of what the DOJ has actually argued.
Is the DOJ arguing that any business owner, regardless of religious faith (or absence thereof) “should be allowed to force women to wear skirts at work”? Not exactly, but the DOJ is arguing that this is what the law already allows, under certain conditions.
The DOJ is not making an argument from a moral viewpoint, saying what “should” be allowed and what should not be allowed. As is the norm for briefs before the U.S. Supreme Court, the DOJ is arguing what it perceives existing law to require — taking into account the text of legislation, the precedents set in past federal court decisions, as well as the intentions and understandings of lawmakers when they wrote the legislation in question. These are legal arguments, not moral ones, and they are arguments based on what the DOJ understands is the case, not what the DOJ thinks should be the case.
In this particular instance, the DOJ is arguing that the existing body of non-discrimination law does not recognize transgender status as one of the grounds for a “pure” discrimination claim (like race, sex, religion, and so on); and that existing law does not regard a workplace policy as impermissible if it merely takes into account sex, rather than unfairly favoring or burdening one sex over the other.
Therefore, the DOJ is in effect arguing that existing law already allows an employer to impose different dress codes for male and female workers, provided those dress codes don’t unfairly burden or favor one sex over the other. In this narrow sense, Shareblue’s headline has an element of truth — having different dress codes for men and women could involve obliging female employees to wear skirts (or pantsuits, or scarves, or dresses, and so on.)
But that headline is woefully incomplete and therefore misleads readers about the DOJ’s actual argument, because having different dress codes for men and women would equally involve obliging male employees to wear trousers, suits, ties, and so on.
So for Shareblue to cherry-pick only one side of the implications of the DOJ’s argument, by focusing, in its headline, on “women” and “skirts,” misleads readers while also missing the very point the DOJ made in that argument: that once the burden from sex-specific policies like dress codes is equally shared by men and women, the law allows that policy.
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