Written by Don Byrd
The Sixth Circuit Court of Appeals has ruled in favor of the EEOC and a transgender funeral home employee in Michigan in their suit claiming her termination was unlawful discrimination. The funeral home argued that enforcement of the nondiscrimination law against them violated their religious liberty rights under the Religious Freedom Restoration Act (RFRA) because requiring them to allow the employee to present herself as a woman substantially burdens their religious exercise. The appeals court disagreed and rejected the religious liberty claims, in a significant ruling that explored thoroughly the elements of RFRA and made substantial pronouncements of law regarding RFRA’s application to nondiscrimination suits.
RFRA prohibits the federal government (here, the EEOC, which brought suit) from placing a substantial burden on a person’s religious exercise unless it the burden is necessary (“narrowly tailored”) to further a compelling government interest. Here are a few key holdings from the opinion on each RFRA element:
First, requiring the funeral home to tolerate an employee’s sex and gender identity is not a substantial burden on the employer’s religious beliefs. The funeral home owner (Mr. Rost) claimed that such a requirement would amount to forcing him to “support” the employee’s views, which he objects to on sincere religious grounds. The appeals court explained why his argument falls short in this case.
[S]imply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” —constitutes “an honest conviction.” But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.
Most circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.
Rost may sincerely believe that, by retaining Stephens as an employee, he is supporting and endorsing Stephens’s views regarding the mutability of sex. But as a matter of law, bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views. …
At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so.
Second, even if the employer’s religious exercise was substantially burdened in this case, the government has a compelling interest in enforcing the nondiscrimination laws in Title VII of the Civil Rights Act.
Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens— to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce. . . . [T]he EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.
Third, there is no less restrictive means of achieving that interest than to enforce the law.
The EEOC, Stephens, and several amici argue that searching for an alternative to Title VII is futile because enforcing Title VII is itself the least restrictive way to further EEOC’s interest in eradicating discrimination based on sex stereotypes from the workplace. We agree.
The Court seemingly recognized Title VII’s ability to override RFRA in Hobby Lobby, as the majority opinion stated that its decision should not be read as providing a “shield” to those who seek to “cloak as religious practice” their efforts to engage in “discrimination in hiring, for example on the basis of race.” As the Hobby Lobby Court explained, “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement.
The court also rejected the funeral home’s claim that it qualifies as a religious institution eligible for the “ministerial exception.” Just because the business claims as a part of its mission to further a religious aim does not make it a religious institution, the court held.
The appeals court’s decision overturns the district court’s 2016 ruling in favor of the funeral home.
For more on RFRA, see the BJC’s RFRA resource page.