Dress Code Discrimination After Hobby Lobby 14:13, September 8, 2016

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Dress Code Discrimination After Hobby Lobby

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In the latest chapter of the Title VII LGBT rights saga, a Michigan court has not only said that an employee’s transgender status does not confer protection from workplace discrimination, but that religion can be a defense to a sex discrimination lawsuit. The US Equal Employment Opportunity Commission (EEOC) considers sexual orientation a protected class and has litigated vigorously to champion LGBT rights. Members of Congress have also weighed in to try to influence the courts to recognize the EEOC’s expansive interpretation of Title VII.

Hobby Lobby Applies to Sex Discrimination Claims

R.G. & G.R. Harris Funeral Homes required a transgender female employee, who expresses herself as female, to follow the funeral home’s dress code and wear pants, suit, and a tie at work. The employee, a funeral director identified in the Court opinion only as “Stephens” was terminated for intending to dress according to the dress code for women, which required a skirt suit. The EEOC sued on Stephens’s behalf for sex discrimination in violation of Title VII. The funeral home defended its actions on the grounds that the company’s owner had a sincerely held religious belief that the Bible requires men and women to dress in ways that express their biological sex.

The Court rejected the Funeral Home’s claim that its sex-specific dress code did not constitute impermissible sex stereotyping under Title VII. However, the Court also found that the Funeral Home’s defense was valid under the federal Religious Freedom Restoration Act (“RFRA”). Nevertheless, the EEOC could still prevail if it proved that enforcing Title VII despite the religious objections (1) furthered a compelling government interest; and (2) that the EEOC had come up with the least restrictive means of enforcing the law. This standard for applying the law to organizations that object to a specified enforcement action was first articulated in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), in which the US Supreme Court found that an employer with religious objections to birth control did not have to pay for employee contraceptive care under the Patient Protection and Affordable Care Act of 2010.

The Court said that even assuming (1) could be proven, “the EEOC has failed to show that application of the burden on the Funeral Home, under these facts, is the least restrictive means of protecting employees from gender stereotyping.” The Court did not accept the EEOC’s assertion that transgender status is protected under Title VII, which might have otherwise justified the EEOC’s position that the only way to enforce Title VII would be to allow Stephens to wear a skirt suit at work.

The intent of Title VII’s inclusion of sex as protected class, according the Court’s reading of Supreme Court precedent, is to “forbid employers to take gender into account” and make gender “irrelevant” to employment decisions (the precedential case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that a woman could not be denied a promotion based on a stereotype that she was too “aggressive” or “macho” for a woman). Under this precedent, the Court reasoned that it would have made more sense (and been less burdensome on religion) for the EEOC to object having a different male/female dress code at all.

It seems the Court was implying that having men and women dress differently could be seen as reinforcing gender stereotypes (rather than making gender irrelevant to workplace decisions). By contrast, enforcing Title VII by requiring a gender-neutral uniform may have been a way to accommodate the Funeral Homes’ religious convictions. But the EEOC instead argued, according the Court’s summary, that Stephens had “a Title VII right to ‘dress as a woman’ (i.e., dress in a stereotypical feminine manner) while working at the Funeral Home, in order to express Stephens’s gender identity.”

Since gender must not be a factor in employment decisions, the Court held that forcing the Funeral Home to allow a certain kind of gender expression by altering the application of its dress code would not make gender irrelevant in the workplace:

“If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender irrelevant), the EEOC’s chosen manner of enforcement in this action does not accomplish that goal,” the Court concluded. [Emphasis in original.]   [EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (USDC EDMI 2016) no. 14-13710]

Key Takeaway

Gender discrimination and harassment remain a major part of today’s workplace, even while the legal landscape dramatically shifts. Most employers cannot succeed on a religion defense to gender discrimination lawsuits. More importantly, the case discussed above was heard in a federal district court, which means there’s room for a reversal in a higher court. In light of the EEOC’s commitment to LGBT employment rights, it’s likely the case will be appealed. Considering the uncertain state of both the application of Hobby Lobby and transgender protections under Title VII, an appeal could completely change the result.

To avert the risk of expensive litigation and the different treatment of the law by courts, it’s important that everyone at your organization knows what is considered illegal discrimination and harassment, and how to prevent it. LawRoom provides online compliance training on sexual harassment, ethics, FCPA and data security to thousands of companies and universities. To learn more, check out our webinar Lessons Learned on Workplace Harassment in 2016.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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