IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION, 

Plaintiff, 

v. 

R.G. & G.R. HARRIS FUNERAL 

HOMES, INC., 

 Defendant. 

Case No. 14-cv-13710 

Hon. Sean F. Cox 

Mag. David R. Grand 

ACLU’S AMICUS CURIAE BRIEF IN SUPPORT OF 

PLAINTIFF EEOC’S MOTION FOR SUMMARY JUDGMENT 

 

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES ............................................................................ ii 

INTEREST OF AMICI CURIAE ...................................................................... 1 

INTRODUCTION ............................................................................................ 2 

FACTUAL AND PROCEDURAL BACKGROUND ..................................... 3 

ARGUMENT .................................................................................................... 4 

I. The Funeral Home’s dress code is not a defense to its discriminatory 

 firing of Aimee Stephens ........................................................................ 4 

II. The Free Exercise Clause and RFRA do not provide religious 

 exemptions from Title VII and other civil rights laws ........................... 8 

 A. Enforcement of Title VII against the Funeral Home does not 

 violate the Free Exercise Clause .................................................. 9 

 B. Enforcement of Title VII against the Funeral Home does not 

 violate RFRA ................................................................................ 13 

CONCLUSION ................................................................................................. 21 

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TABLE OF AUTHORITIES 

Cases 

Adkins v. City of New York, 

 No. 14-CV-7519 JSR, 2015 WL 7076956 (S.D.N.Y. Nov. 15, 2015) .... 17

Am. Friends Serv. Comm. Corp. v. Thornburgh, 

951 F.2d 957 (9th Cir. 1991) ................................................................... 15

Bd. of Directors of Rotary Club Int’l v. Rotary Club of Duarte, 

481 U.S. 537 (1987)................................................................................. 16

Bloch v. Frischholz, 

587 F.3d 771 (7th Cir. 2009) ................................................................... 10

Bob Jones University v. United States, 

461 U.S. 574 (1983)........................................................................... 11, 21

Burwell v. Hobby Lobby Stores, Inc., 

134 S. Ct. 2751 (2014) ....................................................................... 13, 18

Chavez v. Credit Nation Auto Sales, LLC, 

No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016) ...................... 6

City of Boerne v. Flores, 

521 U.S. 507 (1997)................................................................................... 9

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints 

 v. Amos, 483 U.S. 327 (1987) .................................................................. 20

Cutter v. Wilkinson, 

544 U.S. 709 (2005)................................................................................. 20

Dawson v. H&H Elec., Inc., 

No. 4:14CV00583 SWW, 2015 WL 5437101 (E.D. Ark. 

Sept. 15, 2015) ........................................................................................... 6

Dole v. Shenandoah Baptist Church, 

899 F.2d 1389 (4th Cir. 1990) ..................................................... 13, 16, 21

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EEOC v. Fremont Christian School, 

781 F.2d 1362 (9th Cir. 1986) ............................................... 12–13, 16, 21

EEOC v. Mississippi College, 

626 F.2d 477 (5th Cir. 1980) ................................................................... 12

EEOC v. Pac. Press Publ’g Ass’n, 

676 F.2d 1272 (9th Cir. 1982), .......................................................... 13, 15

EEOC v. Preferred Mgmt. Corp., 

216 F. Supp. 2d 763 (S.D. Ind. 2002) ................................................ 13, 15

Employment Division v. Smith, 

494 U.S. 872 (1990)................................................................................... 9 

Estate of Thornton v. Caldor, 

 472 U.S. 703 (1985)................................................................................. 20

Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 

 617 F.3d 402 (6th Cir. 2010) ............................................................. 14–15

Glenn v. Brumby, 

 663 F.3d 1312 (11th Cir. 2011) ....................................................... 5–6, 17

Hobbie v. Unemployment Appeals Comm’n of Fla., 

480 U.S. 136 (1987)................................................................................. 20

J.E.B. v. Alabama, 

 511 U.S. 127 (1994)................................................................................. 17

Lie v. Sky Pub. Corp., 

No. 013117J, 2002 WL 31492397 (Mass. Super. Oct. 7, 2002) ............... 6

Mount Elliott Cemetery Ass’n v. City of Troy, 

171 F.3d 398 (6th Cir. 1999) ..................................................................... 9 

N. Coast Women’s Care Med. Grp., Inc. v. Superior Court, 

 189 P.3d 959 (Cal. 2008) ......................................................................... 19 

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Newman v. Piggie Park Enters., Inc., 

 256 F. Supp. 941 (D.S.C. 1966) ........................................................ 11, 21

Prater v. City of Burnside, 

289 F.3d 417 (6th Cir. 2002) ................................................................... 10

Price Waterhouse v. Hopkins, 

490 U.S. 228 (1989)................................................................................ 4-5 

Redhead v. Conference of Seventh-Day Adventists, 

 440 F. Supp. 2d 211 (E.D.N.Y. 2006) ......................................... 13, 15–16

Roberts v. U.S. Jaycees, 

 468 U.S. 609 (1984)........................................................................... 14, 16

Romer v. Evans, 

 517 U.S. 620 (1996)................................................................................. 14

Schroer v. Billington, 

 577 F. Supp. 2d 293 (D.D.C. 2008) ....................................................... 5, 8

Sherbert v. Verner, 

 374 U.S. 398 (1963)........................................................................... 10–11

Smith v. City of Salem, 

 378 F.3d 566 (6th Cir. 2004) ............................................................ passim

Swanner v. Anchorage Equal Rights Comm’n, 

 874 P.2d 274 (Alaska 1994) .................................................................... 19

United States v. Burke, 

 504 U.S. 229 (1992)........................................................................... 14, 19

Vigars v. Valley Christian Ctr. of Dublin, Cal., 

 805 F. Supp. 802 (N.D. Cal. 1992) ...................................................... 9–10 

Wisconsin v. Yoder, 

 406 U.S. 205 (1972)........................................................................... 10–11 

 

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Administrative Decision 

Lusardi v. McHugh, 

EEOC DOC 0120133395, 2015 WL 1607756 (Apr. 1, 2015) ......................... 8

Statutes 

42 U.S.C. § 2000bb–1(b) ................................................................................... 14 

42 U.S.C. § 2000bb(b)(1) ................................................................................. 10–11 

Other Authorities 

Jaime Grant, et al., Injustice at Every Turn: A Report of the National 

Transgender Discrimination Survey (2011) ...................................................... 18 

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to 

Reflect Modern Medical Science Is Key to Transgender Rights, ........................ 7 

39 Vt. L. Rev. 943 (2015) 

E.L. Lombardi, et al., Gender Violence: Transgender Experiences With 

Violence and Discrimination, 42 Journal of Homosexuality 89 (2001) ............ 18 

Rebecca Stotzer, Violence Against Transgender People: A Review of 

United States Data, 14 Aggression and Violent Behavior 170 (2009) ....... 17–18 

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INTEREST OF AMICI CURIAE

The American Civil Liberties Union and the American Civil Liberties Union 

of Michigan (collectively, “ACLU”) submit this amicus brief in support of 

Plaintiff’s motion for summary judgment. The right to practice one’s religion, or 

no religion, is a core component of our civil liberties and is of vital importance to 

the ACLU. For this reason, the ACLU regularly brings cases aimed at protecting 

the right to religious exercise and expression. At the same time, the ACLU is 

committed to fighting discrimination and inequality, including discrimination 

against transgender people by, for example, denying transgender employees the 

ability to dress consistently with their gender identity. 

Amici support the motion for summary judgment filed by Plaintiff Equal 

Employment Opportunity Commission (“EEOC”). Amici submit this brief to 

explain why an employer may not use a sex-specific dress code as a license to 

subject a transgender employee to an adverse employment action, such as firing, 

because she intends to dress consistently with her gender identity, and to explain 

why Title VII is essential to furthering the government’s compelling interest in 

preventing invidious discrimination. Amici take no position on the other issues 

presented by the parties’ cross-motions for summary judgment. 

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INTRODUCTION 

Amici agree with the EEOC that terminating a transgender employee 

because she intends to dress consistently with her gender identity constitutes illegal 

sex discrimination even if couched as the enforcement of a so-called “biological” 

sex-specific dress code. To hold otherwise would allow employers through the 

adoption and application of such a dress code to reinforce the sex-stereotypes that 

Title VII was intended to eradicate. To be clear, this case is not a challenge to 

gendered dress codes, as Defendant R.G. & G.R. Harris Funeral Homes, Inc. 

(“Funeral Home”) would have this Court believe. The EEOC’s case is only about 

whether firing a transgender female employee because of her plan to start dressing 

as a woman constitutes sex stereotyping in violation of Title VII. It plainly does. 

Amici further agree with the EEOC that neither the Free Exercise Clause nor 

the Religious Freedom Restoration Act (“RFRA”) exempts the Funeral Home from 

liability under Title VII. The religious defenses raised by the Funeral Home—that 

it has the right to discriminate based on sex in violation of federal civil rights laws 

because of its owner’s religious beliefs—are, unfortunately, not new. For decades, 

private employers have attempted to use their religious beliefs to evade compliance 

with anti-discrimination laws, including Title VII. For example, employers claimed 

that the right to religious freedom entitled them to pay men more than women, 

because of their religious belief that men should be the primary breadwinners; 

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businesses claimed that the right to religious liberty entitled them to discriminate 

against people of color in public accommodations, because of their religious belief 

that the races should be kept separate; and universities claimed a religious liberty 

right to prohibit interracial dating among their students, because of their religious 

belief against interracial relationships. In each of these cases, courts squarely 

rejected the notion that religious liberty provides employers, schools, and 

businesses open to the public with a license to discriminate. This Court should 

come to the same conclusion here. The exemption the Funeral Home seeks, if 

granted, would not only contravene clear and consistent precedent, it would 

threaten decades of progress achieved by important civil rights statutes and would 

make employees throughout the country vulnerable to discrimination. 

FACTUAL AND PROCEDURAL BACKGROUND 

Aimee Stephens is a transgender woman who served as a funeral director 

and embalmer at the Funeral Home. Mem. in Supp. of Pl.’s Mot. for Summ. J. (“Pl. 

Mem.”) at 1. On July 31, 2013, Ms. Stephens wrote her coworkers a letter 

informing them about her transition from male to female, and explaining that she 

intended to dress in appropriate business attire as a woman. See id. Ex. A, Stephens 

Letter. The Funeral Home’s owner, Thomas Rost, responded two weeks later by 

handing Ms. Stephens a severance agreement. Mr. Rost has said that the “specific 

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reason” he terminated Ms. Stephens was because she “wanted to dress as a 

woman.” Pl. Mem. at 1–2. 

The EEOC brought a sex discrimination lawsuit against the Funeral Home, 

alleging that its termination of Ms. Stephens violated Title VII’s prohibition on sex 

discrimination. The Funeral Home moved to dismiss the case on the ground that 

gender identity is not protected by Title VII; however, this Court concluded that 

the EEOC had properly alleged a sex discrimination claim by asserting that Ms. 

Stephens was fired for failing to conform to Mr. Rost’s sex- or gender-based 

stereotypes. Op. & Order Denying Mot. to Dismiss at 14. After its motion to 

dismiss was denied, the Funeral Home amended its Answer to raise defenses under 

the Free Exercise Clause and RFRA. Answer to Am. Compl. at 5. The parties have 

filed cross-motions for summary judgment. 

ARGUMENT 

I. The Funeral Home’s dress code is not a defense to its discriminatory 

firing of Aimee Stephens. 

 The Funeral Home relies on its alleged “biological” sex-specific dress code 

to justify its termination of Ms. Stephens. Its argument, however, misconstrues the 

EEOC’s argument as a challenge to its dress code, which it is not, and ignores the 

ample legal precedent establishing that an employer’s adverse response to an 

employee’s manner of dress may constitute illegal sex discrimination. Since Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989), numerous courts have recognized 

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that disparate treatment of an employee because her clothing fails to comport with 

the employer’s sex-based stereotypes qualifies as illegal sex discrimination. The 

Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), extended 

Price Waterhouse’s reasoning to a transgender firefighter who had been suspended 

after she began to express a more feminine appearance at work. The court reasoned 

that, under Price Waterhouse, “employers who discriminate against men because 

they do wear dresses and makeup, or otherwise act femininely, are also engaging in 

sex discrimination, because the discrimination would not occur but for the victim's 

sex.” Id. at 574. 

Consistent with Price Waterhouse and Smith, courts have repeatedly held 

that an employer’s adverse response to a transgender person’s intention to begin 

dressing consistently with his or her gender identity—such as occurred in the 

present case—constitutes unlawful sex stereotyping. In Schroer v. Billington, 577 

F. Supp. 2d 293 (D.D.C. 2008), for example, the court found that a transgender 

woman was subject to sex stereotyping in violation of Title VII, based on evidence 

that her offer to work at the Library of Congress was retracted because she was 

perceived as “a man in women’s clothing,” or would be perceived as such by 

Members of Congress and their staffs. Id. at 305. The Eleventh Circuit reached a 

similar conclusion in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), finding 

that the reason for a transgender woman’s termination—because she was perceived 

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“as ‘a man dressed as a woman and made up as a woman,’”—provided “ample 

direct evidence to support the district court’s conclusion” that she was fired due to 

sex stereotyping in violation of the Fourteenth Amendment. Id. at 1320–21; see 

also Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820, at 

*7 (11th Cir. Jan. 14, 2016) (testimony that transgender woman was told not to 

wear a dress to and from work evidence of sex discrimination); Dawson v. H&H 

Elec., Inc., No. 4:14CV00583 SWW, 2015 WL 5437101, at *4 (E.D. Ark. Sept. 15, 

2015) (finding that there was “ample evidence from which a reasonable juror could 

find that [a transgender employee] was terminated because of her sex,” where 

employer “repeatedly forbade” her to “wear feminine clothes at work” and 

terminated her employment “soon after she disobeyed [her employer’s] orders and 

began wearing makeup and feminine attire at work”); Lie v. Sky Pub. Corp., No. 

013117J, 2002 WL 31492397, at *5 (Mass. Super. Oct. 7, 2002) (firing of 

transgender woman for refusing to “wear traditionally male attire” made out case 

of sex stereotyping). 

The Funeral Home suggests that its termination of Ms. Stephens did not 

violate Title VII because it fired her for failing to comply with its dress code 

“based on the biological sex of its employees.” Mem. of Law in Supp. of Def.’s 

Mot. for Summ. J. (“Def. Mem.”) at 8. But the Funeral Home’s assertion that it 

may require Ms. Stephens to wear men’s attire because it perceives her to be 

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“biologically” male is simply another way of describing its illegal sex 

stereotyping—its refusal to allow a person it perceives as male to dress as a 

female.1

 As such, this case is no different than Smith and the other cases cited 

supra. And while the Funeral Home claims that the EEOC is challenging its ability 

to maintain a sex-specific dress code, the lawfulness of sex-specific dress codes is 

not at issue in this case. What is at issue is the Funeral Home’s discriminatory 

application of its dress code to Ms. Stephens. None of the cases cited by the 

Funeral Home involve transgender employees, nor do they permit an employer to 

treat transgender men and women differently from other men and women. Rather, 

the cases cited by the Funeral Home involve employees who did not comply with 

the dress code applicable to them. Here, by contrast, there is no dispute that Ms. 

Stephens intended to comply with the dress code consistent with her gender 

identity. 

Nor is there any basis for the Funeral Home’s argument that accepting the 

EEOC’s position in this case would require employers “to allow an employee to 

dress in a female uniform one day, switch to a male uniform the next day, and 

return to the female uniform whenever that employee chooses.” Def. Mem. at 15. 

                                                            

1

 While it is unnecessary for this Court to resolve this question, it bears pointing 

out that the Funeral Home’s assertion that Ms. Stephens is “biologically” male is 

inaccurate—research indicates that gender identity itself has a biological 

component. See M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law 

to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 

943, 944 (2015) (summarizing research). 

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A transgender person’s decision to live consistent with her gender identity is not 

one that is made lightly, nor is going to be reversed on a whim. See, e.g., Schroer 

v. Billington, 577 F. Supp. 2d 293, 296 (D.D.C. 2008) (transgender job applicant 

explaining “that she did not see being transgender as a choice and that it was 

something she had lived with her entire life”). The Funeral Home’s argument that 

its “business needs and the interests of the grieving people [it] serves” allows it to 

refuse Ms. Stephens the ability to dress as a woman is similarly devoid of merit 

Def. Mem. at 14. The record shows that Ms. Stephens intended to dress 

professionally as a woman. Moreover, “Title VII prohibits discrimination based on 

sex whether motivated by hostility, by a desire to protect people of a certain 

gender, by gender stereotypes, or by the desire to accommodate other people’s 

prejudices or discomfort.” Lusardi v. McHugh, EEOC DOC 0120133395, 2015 

WL 1607756, at *9 (Apr. 1, 2015) (collecting cases). 

II. The Free Exercise Clause and RFRA do not provide religious 

exemptions from Title VII and other civil rights laws. 

A central question presented in this case is whether a for-profit business can 

rely on the religious beliefs of its owners to discriminate against a lay employee on 

the basis of her sex, where other employers would face liability under Title VII or 

another civil rights statute for engaging in such discrimination. The answer is no. 

Neither the Constitution’s Free Exercise Clause nor RFRA gives for-profit 

businesses the right to discriminate against lay employees on the basis of sex, race, 

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or other federally protected characteristics, even if the discrimination is motivated 

by the sincerely held religious beliefs of the business’s owners. To the contrary, 

courts have consistently refused to grant employers religious exemptions from civil 

rights laws in circumstances such as these. This Court should apply the same 

principle here.

A. Enforcement of Title VII against the Funeral Home does not violate 

the Free Exercise Clause. 

In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court 

held that “neutral, generally applicable laws may be applied to religious practices 

even when not supported by a compelling governmental interest.” City of Boerne v. 

Flores, 521 U.S. 507, 514 (1997) (citing Smith). Since Smith, courts—including 

the Sixth Circuit—have consistently held that neutral laws of general applicability 

do not violate the Free Exercise Clause. See, e.g., Mount Elliott Cemetery Ass’n v. 

City of Troy, 171 F.3d 398, 405 (6th Cir. 1999) (“[T]he City of Troy’s ordinances 

governing residential and community facilities districts are neutral laws of general 

applicability. As a result, we find that judgment was properly entered in favor of 

the City with respect to the free exercise claim.”). 

Here, Title VII is a neutral law of general applicability, and it is well-settled 

that the law does not target any specific religion for discriminatory treatment. See, 

e.g., Vigars v. Valley Christian Ctr. of Dublin, Cal., 805 F. Supp. 802, 809 (N.D. 

Cal. 1992) (“Title VII neither regulates religious beliefs, nor burdens religious acts, 

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because of their religious motivation. On the contrary, it is clear that Title VII is a 

secular, neutral statute . . . .”). Even if particular religious beliefs are 

disproportionately burdened by Title VII, this burden is insufficient to show the 

statute is intended to discriminate against that religion, such that heightened 

judicial scrutiny of the statute is required. See, e.g., Bloch v. Frischholz, 587 F.3d 

771, 785 (7th Cir. 2009) (“Smith requires more than just evidence of an adverse 

impact on [religious believers] . . . . Under Smith, the denial of a religious 

exception is not intentional discrimination.”); Prater v. City of Burnside, 289 F.3d 

417, 428–29 (6th Cir. 2002) (“Discrimination may not be inferred . . . simply 

because a public program is incompatible with a religious organization’s spiritual 

priorities . . . . The Church, therefore, must show more than disparate impact in 

order to prove discriminatory animus on the part of the City.”). The Free Exercise 

Clause accordingly does not exempt lay employees from Title VII’s protections. 

Even under the more rigorous pre-Smith analysis, courts repeatedly found 

that antidiscrimination laws such as Title VII meet strict scrutiny and therefore 

survive Free Exercise Clause challenges.2

 These courts held that any burdens on 

                                                            

2

 Before Smith, courts analyzed religious exemption claims by determining 

whether: (1) the denial of an exemption substantially burdened the claimant’s 

religious exercise; and (2) if so, whether the denial of an exemption was 

nevertheless justified by the need to further a compelling government interest. See 

Wisconsin v. Yoder, 406 U.S. 205, 210–11 (1972); Sherbert v. Verner, 374 U.S. 

398, 406–09 (1963). Because RFRA was meant “to restore the compelling interest 

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the free exercise of religion imposed by antidiscrimination statutes are outweighed 

by the compelling state interest in eradicating discrimination and promoting 

equality. In Bob Jones University v. United States, 461 U.S. 574 (1983), for 

example, the Supreme Court held that the IRS’s denial of tax exempt status to Bob 

Jones University and Goldsboro Christian Schools—on the ground that the schools 

engaged in racial segregation because of its religious belief against interracial 

relationships—did not violate the Free Exercise Clause, because “the Government 

has a fundamental, overriding interest in eradicating racial discrimination in 

education . . . [which] outweighs whatever burden denial of tax benefits places on 

[the schools’] exercise of their religious beliefs.” Id. at 604; see also, e.g., Newman 

v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966) (“refus[ing] to 

lend credence or support to [a restaurant owner’s position] that he has a 

constitutional right to refuse to serve members of the Negro race in his business 

establishments upon the ground that to do so would violate his sacred religious 

beliefs”), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 

(4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968). 

In the employment context, courts consistently rejected pre-Smith Free 

Exercise Clause challenges to Title VII and other nondiscrimination statutes. For 

instance, in EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), the Fifth 

                                                                                                                                                                                               

test as set forth” in Sherbert and Yoder, 42 U.S.C. § 2000bb(b)(1), the pre-Smith

case law is informative with respect to the Funeral Home’s RFRA defense. 

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Circuit held that application of Title VII to a sectarian university’s employment 

practices did not violate the Free Exercise Clause. Id. at 489. Although the College 

argued that it should be allowed to discriminate on the basis of sex because of its 

religious belief that only men should teach certain courses, the court concluded that 

the College was not exempt from Title VII’s prohibition against discrimination 

because of sex and that any claimed burden on religious exercise in complying 

with the law were justified by the government’s “compelling interest in eradicating 

discrimination in all forms.” Id at 488. To take another example, in EEOC v. 

Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986), the Ninth Circuit held 

that a sectarian school’s policy of providing health insurance benefits only to 

persons it considered to be “head of household”—i.e., single persons and married 

men, but not married women—violated Title VII and the Fair Labor Standards Act 

(FLSA). Id. at 1364. The school challenged the statutes on Free Exercise Clause 

grounds, arguing that its practice of providing health insurance benefits to single 

employees and married men, but not married women, was motivated by the sincere 

religious belief that men should be the head of the household. Id. at 1367. The 

court, however, held that the school’s policy discriminated on the basis of sex and 

that enforcement of the anti-discrimination statutes was the least restrictive means 

for furthering Congress’s compelling interest in eliminating discrimination. Id. at 

1368–69 (citing EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 1272, 1279 (9th Cir. 

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1982)); accord Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 

1990) (holding that enforcement of the FLSA’s minimum wage and equal pay 

provisions against a sectarian school that paid female teachers less than male 

teachers did not violate the school’s free exercise rights, because enforcement of 

these provisions was the least restrictive means for furthering the government’s 

compelling interest in preventing discrimination and ensuring fair wages). 

B. Enforcement of Title VII against the Funeral Home does not violate 

RFRA. 

Just as courts refused to grant religious exemptions from Title VII and other 

civil rights laws under the pre-Smith Free Exercise Clause, so too they have 

refused to grant such exemptions under RFRA. See Redhead v. Conference of 

Seventh-Day Adventists, 440 F. Supp. 2d 211, 221–22 (E.D.N.Y. 2006) (rejecting 

sectarian school’s RFRA defense to Title VII sex discrimination claim by teacher 

who was fired after becoming pregnant outside of marriage); EEOC v. Preferred 

Mgmt. Corp., 216 F. Supp. 2d 763, 810–13 (S.D. Ind. 2002) (rejecting for-profit 

company’s RFRA defense to Title VII religious discrimination claims); see also 

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2783 (2014) (stating that 

“[t]he Government has a compelling interest in providing an equal opportunity to 

participate in the workforce without regard to race”). 

Under RFRA, which was meant to restore the pre-Smith approach to 

religious exemption claims, employers must comply with federal laws, including 

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Title VII—even where the requirements of those laws impose a substantial burden 

on its owner’s religious beliefs—so long as the government “demonstrates that 

application of the burden to the person . . . (1) is in furtherance of a compelling 

governmental interest; and (2) is the least restrictive means of furthering that 

compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). Here, Title VII is the 

least restrictive means for furthering the government’s interest in preventing 

invidious employment discrimination on the basis of sex. “It is beyond question 

that discrimination in employment on the basis of sex, race, or any of the other 

classifications protected by Title VII is . . . an invidious practice that causes grave 

harm to its victims.” United States v. Burke, 504 U.S. 229, 238 (1992). Such 

discrimination “both deprives persons of their individual dignity and denies society 

the benefits of wide participation in political, economic, and cultural life.” Roberts 

v. U.S. Jaycees, 468 U.S. 609, 625 (1984). To prevent these evils, Title VII and 

other civil rights laws ensure equal access to the “transactions and endeavors that 

constitute ordinary civic life in a free society.” Romer v. Evans, 517 U.S. 620, 631 

(1996).3

 

                                                            

3

 To be sure, there are many cases where a court may dispose of RFRA claims on 

alternative grounds. For example, the Sixth Circuit has held that RFRA does not 

apply in a suit between private parties. Gen. Conf. Corp. of Seventh-Day Adventists 

v. McGill, 617 F.3d 402, 410 (6th Cir. 2010). Or, as the EEOC argues here, a court 

may conclude that the challenged government action does not impose a substantial 

burden on the RFRA claimant’s religious exercise. Pl. Mem. at 18–24.

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15 

Courts have acknowledged the government’s compelling interest in 

eradicating all forms of invidious discrimination proscribed by Title VII. In EEOC 

v. Pacific Press Publishing Association, for example, the Ninth Circuit rejected an 

employer’s pre-Smith free exercise challenge to an EEOC retaliation case, because 

of the government’s compelling interest in preventing employment discrimination. 

676 F.2d 1272, 1280 (9th Cir. 1982), abrogation on other grounds recognized by 

Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 

1991).4

 It held that “Congress clearly targeted the elimination of all forms of 

discrimination as a ‘highest priority.’ Congress’ purpose to end discrimination is 

equally if not more compelling than other interests that have been held to justify 

legislation that burdened the exercise of religious convictions.” Pac. Press, 676 

F.2d at 1280 (emphasis added) (citations omitted). Courts have similarly rejected 

RFRA challenges to Title VII liability, explaining that Title VII furthers the 

government’s compelling interest in “the eradication of employment 

discrimination based on the criteria identified in Title VII.” Preferred Mgmt. 

Corp., 216 F. Supp. 2d at 811; see also Redhead, 440 F. Supp. 2d at 221–22 

(stating that the government has a compelling interest in making sure that “Title 

VII remains enforceable as to [non-ministerial] employment relationships”). 

                                                            

4

 The employer in Pacific Press was a Seventh-Day Adventist non-profit 

publishing house, and maintained that the charging party’s participation in EEOC 

proceedings violated church doctrines prohibiting lawsuits by members against the 

church. 676 F.2d at 1280. 

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16 

Although it is unnecessary to consider separately the interest in protecting 

equal employment opportunity based on each of the protected characteristics under 

Title VII, it is well established that the government has a compelling interest in 

eradicating discrimination based on sex. As the Supreme Court stated in Roberts, 

the “stigmatizing injury” of discrimination, “and the denial of equal opportunities 

that accompanies it, is surely felt as strongly by persons suffering discrimination 

on the basis of their sex as by those treated differently because of their race.” 468 

U.S. at 625; see also Bd. of Directors of Rotary Club Int’l v. Rotary Club of 

Duarte, 481 U.S. 537, 549 (1987) (acknowledging the State’s “compelling interest 

in assuring equal access to women extends to the acquisition of leadership skills 

and business contacts as well as tangible goods and services”). In the employment 

context, in particular, courts have consistently recognized that the government 

interest in preventing gender discrimination is “of the highest order.” Dole, 899 

F.2d at 1392 (internal quotation marks omitted); accord Fremont Christian School, 

781 F.2d at 1368. 

The government’s interest in preventing invidious sex discrimination is no 

less compelling when the discrimination is directed at transgender persons. Our 

nation has a long and painful history of sex discrimination against transgender 

people. See Smith, 378 F.3d at 575 (holding that employer engaged in 

impermissible sex discrimination when it suspended transgender firefighter after 

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17 

she began to exhibit a more feminine appearance at work); cf. Glenn, 663 F.3d at 

1319–20 (holding in a case involving employment discrimination against a 

transgender employee that “governmental acts based upon gender stereotypes—

which presume that men and women’s appearance and behavior will be determined 

by their sex—must be subjected to heightened scrutiny [under the Fourteenth 

Amendment] because they embody ‘the very stereotype the law condemns’” 

(quoting J.E.B. v. Alabama, 511 U.S. 127, 138 (1994)); Adkins v. City of New 

York, No. 14-CV-7519 JSR, 2015 WL 7076956, at *4 (S.D.N.Y. Nov. 15, 2015) 

(holding that transgender people are a quasi-suspect class for purposes of the 

Fourteenth Amendment, in part because they “have suffered a history of 

persecution and discrimination”). 

Numerous studies have shown that transgender people face a serious risk of 

bodily harm, violence, and discrimination because of their transgender status. One 

systematic review of violence against transgender people in the United States up to 

2009 found that between 25 and 50% of respondents had been victims of physical 

attacks because of their transgender status, roughly 15% had reported being 

victims of sexual assault, and over 80% had reported being victims of verbal abuse 

because of their transgender status. Rebecca Stotzer, Violence Against Transgender 

People: A Review of United States Data, 14 Aggression and Violent Behavior 170 

(2009). With respect to employment discrimination in particular, one national 

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18 

study found that 37% of transgender people reported experiencing some form of 

adverse employment action because of their transgender status. E.L. Lombardi, et 

al., Gender Violence: Transgender Experiences With Violence and Discrimination, 

42 Journal of Homosexuality 89 (2001). More recently, the National Transgender 

Discrimination Survey (“Survey”) found that nearly half of respondents had 

experienced some form of adverse employment action, and 26% had lost a job, 

because of their transgender status. Jaime Grant, et al., Injustice at Every Turn: A 

Report of the National Transgender Discrimination Survey at 50 (2011), available 

at http://www.thetaskforce.org /static_html/downloads/reports/reports/ntds_full

.pdf. The Survey found that transgender people report twice the unemployment rate 

of the general population, and that 44% of transgender people report being 

underemployed. Id. There can be no doubt that the government has a compelling 

interest in addressing such rampant discrimination. 

Finally, uniform enforcement of anti-discrimination laws, such as Title VII, 

is the least restrictive means of achieving the government’s interest in preventing 

the social harms of discrimination. Hobby Lobby, 134 S. Ct. at 2783 (recognizing 

that prohibitions against discrimination are “precisely tailored” to achieve the goal 

of equal opportunity). There is simply no way to prohibit discrimination except to 

prohibit discrimination, and any RFRA exemption from Title VII risks imposing 

concrete harms on employees subjected to invidious discrimination. See N. Coast 

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19 

Women’s Care Med. Grp., Inc. v. Superior Court, 189 P.3d 959, 967 (Cal. 2008) 

(holding that a state law prohibiting discrimination in public accommodations 

“furthers California’s compelling interest in ensuring full and equal access to 

medical treatment irrespective of sexual orientation, and there are no less 

restrictive means for the state to achieve that goal” other than enforcement of the 

statute). 

Every single instance of discrimination “causes grave harm to its victims,” 

Burke, 504 U.S. at 238, and denies society the benefit of their “participation in 

political, economic, and cultural life,” Jaycees, 408 U.S. at 625. Because of the 

individual harms associated with each instance of invidious discrimination, there is 

simply no “numerical cutoff below which the harm is insignificant.” Swanner v. 

Anchorage Equal Rights Comm’n, 874 P.2d 274, 282 (Alaska 1994) (per curiam) 

(rejecting state Free Exercise Clause challenge to municipal ordinance prohibiting 

housing discrimination based on marital status, on the ground that any exemption 

to the ordinance would directly impede the government’s interest in preventing 

such discrimination). For the same reasons, enforcement of Title VII against some 

employers cannot alleviate the harms imposed by allowing other employers to 

engage in invidious discrimination. See Def. Mem. at 20–21.5

 

                                                            

5

 Indeed, the Constitution requires the government and courts to account for the 

harms a religious exemption to Title VII would impose on employees. As the 

Supreme Court cautioned in Cutter v. Wilkinson, 544 U.S. 709 (2005), the 

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20 

The implications of allowing a RFRA exemption in this context are 

staggering. People hold sincere religious beliefs about a wide variety of things, 

including racial and religious segregation and the role of women in society. Our 

country’s tradition of respect for religious freedom, in all its diversity, requires that 

we not subject an individual’s assertions about his or her religious beliefs to unduly 

invasive scrutiny. As a result, if religious motivation exempted businesses from 

anti-discrimination laws, our government would be powerless to enforce those 

laws to protect all Americans against the harms of invidious discrimination. To 

name just a few examples: Business owners could refuse service to people of color, 

on the ground that their religious beliefs forbid racial integration. See Piggie Park, 

256 F. Supp. at 945. Employers could refuse to hire women or pay them less than 

men, because their religious beliefs require women to remain at home. See 

Fremont Christian School, 781 F.2d at 1367–69; Dole, 899 F.2d at 1398. And 

                                                                                                                                                                                               

Establishment Clause requires courts analyzing religious exemption claims under 

RFRA and the Religious Land Use and Institutionalized Persons Act to “take 

adequate account of the burdens a requested accommodation may impose on 

nonbeneficiaries.” Id. at 720; see also Estate of Thornton v. Caldor, 472 U.S. 703, 

709–10 (1985) (holding that the Establishment Clause prohibited a Connecticut 

law that “arm[ed] Sabbath observers with an absolute and unqualified right not to 

work on whatever day they designate[d] as their Sabbath,” because the statute took 

“no account of the convenience or interests of the employer or those of other 

employees who do not observe a Sabbath”). Otherwise, “[a]t some point, 

accommodation may devolve into ‘an unlawful fostering of religion.’” Corp. of 

Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 

327, 334–35 (1987) (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 

480 U.S. 136, 144–45 (1987)). 

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21 

educational institutions receiving federal benefits could impose religiously 

motivated racial segregation policies on their students. See Bob Jones Univ., 461 

U.S. at 604. All civil rights laws would be vulnerable to such claims where the 

discrimination was motivated by religion. Such challenges have no foundation in 

the law, and should not be countenanced by this Court. 

CONCLUSION 

For the foregoing reasons, the EEOC’s motion for summary judgment as to 

the Funeral Home’s liability for Ms. Stephens’s gender-motivated termination 

should be granted. 

Respectfully submitted, 

/s/ Jay D. Kaplan 

Jay D. Kaplan (P38197) 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P43085) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6800 

jkaplan@aclumich.org 

dkorobkin@aclumich.org 

msteinberg@aclumich.org

Dated: April 21, 2016 

/s/ Brian Hauss 

Brian Hauss (admission pending) 

Ria Tabacco Mar 

American Civil Liberties Union 

 Foundation 

125 Broad St., 18th Floor 

New York, NY 10004 

(212) 549-2604 

bhauss@aclu.org 

rmar@aclu.org 

/s/ John A. Knight 

John A. Knight 

American Civil Liberties Union 

 Foundation 

180 N. Michigan Avenue, Suite 2300 

Chicago, IL 60606 

(312) 201-9740 

jaknight@aclu.org 

2:14-cv-13710-SFC-DRG Doc # 59 Filed 04/21/16 Pg 27 of 28 Pg ID 1768
CERTIFICATE OF SERVICE 

I hereby certify that on April 21, 2016, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system which will send 

notification of such filing to all counsel of record. 

/s/ Jay D. Kaplan 

Jay D. Kaplan (P38197) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6812 

jkaplan@aclumich.org 

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