Published On: Thu, Aug 18th, 2016

Michigan funeral home battle over transgender dress codes, freedom of conscience rages on

Alliance Defending Freedom Legal Counsel Doug Wardlow will be available for media interviews Thursday following a hearing in federal court over an Equal Employment Opportunity Commission lawsuit against a funeral home’s sex-specific dress code, which requires employees to dress in a manner sensitive to grieving family members and friends. ADF attorneys represent R.G. & G.R. Harris Funeral Homes, which has locations in Detroit, Garden City, and Livonia.

The EEOC filed suit against the funeral home in an attempt to force it to allow a biologically male employee to wear a female uniform while interacting with the public.

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photo Kauhajoki.vaakuna.svg

“The government should respect the freedom of those who are serving the grieving and vulnerable,” said Wardlow. “The funeral home’s dress policy is legitimate, understandable, and legal. Numerous courts have recognized that companies may differentiate between men and women in their dress and grooming policies without violating Title VII, the federal law that prohibits sex discrimination in employment.”

The funeral home hired the biologically male employee as a funeral director and embalmer at its Garden City location in 2007. Funeral directors at the company regularly interact with the public, including grieving family members and friends. After informing the funeral home of an intention to begin dressing as a female at work, the employee was dismissed for refusing to comply with the dress code. The employee was at all times free to dress as desired outside of work but was required to abide by the same dress policy that all employees are required to follow while on the job.

The company’s sole corporate officer and majority owner, Thomas Rost, is a Christian whose faith informs the way he operates his business and how he presents it to the public. Not only would Rost be violating his faith if he were to pay for and otherwise permit his employees to dress as members of the opposite sex while at work, the employee dress policy is also designed to be sensitive to interaction with customers at an especially delicate time of their lives.

“R.G. was not motivated by animus against people who dress as members of the opposite sex,” the summary judgment motion and brief filed in April in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes states. “Indeed, it is undisputed that R.G. would not discharge or otherwise discipline employees who dress as members of the opposite sex on their own time but comply with the dress code while on the job…. Moreover, the uncontested evidence demonstrates that R.G.’s dress code and its enforcement of the dress code against [this employee] are based on R.G.’s legitimate interest in ensuring that mourners have a space free of disruptions to begin the healing process after the loss of a loved one.”

The ADF motion argues that the funeral home did not violate Title VII and is, in fact, protected by a different federal law, the Religious Freedom Restoration Act.

RFRA says that the government cannot force someone like Rost to violate his faith unless it demonstrates that doing so is the “least restrictive means” of furthering a “compelling government interest.” But as the ADF motion explains, “the EEOC cannot demonstrate a compelling interest here…. Nor can the EEOC satisfy RFRA’s least-restrictive-means requirement. A number of available alternatives would allow the government to achieve its goals without violating R.G.’s free-exercise rights.”

Preferred Funeral Directors International awarded R.G. & G.R. Harris Funeral Homes the Parker Award in 2011 for demonstrating exemplary service, and the Livonia location was voted “best hometown funeral home” in March.

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