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.

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CIVIL ACTION NO. 

2:14-CV-13710

Hon. Sean F. Cox

Magistrate Judge 

David R. Grand

Answer to Defendant’s Motion for Summary Judgment

The Plaintiff Equal Employment Opportunity Commission 

respectfully requests that Defendant’s motion for summary judgment be 

denied for three reasons. First, that there is no material factual dispute

that the Defendant discharged Aimee Stephens based on the sex-based 

stereotypes of Thomas Rost. Second, the Religious Freedom Restoration 

Act does not protect employers from the mandates of Title VII, and thus 

Defendant’s RFRA claim must fail as a matter of law. Third, the claim of 

a discriminatory clothing allowance is properly before this Court, and 

there is no material dispute that the benefits afforded to comparable

female employees were and continue to be inferior to those afforded to 

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2

men.

The Commission respectfully directs the Court to the attached 

memorandum for the arguments supporting this Answer.

Wherefore, the Commission respectfully asks that the Court deny 

Defendant’s Motion for Summary Judgment and grant summary 

judgment for Plaintiff.

Respectfully submitted,

EQUAL EMPLOYMENT 

 OPPORTUNITY COMMISSION

s/ Miles Shultz

MILES SHULTZ (P73555)

Trial Attorney

Dated: May 2, 2016 s/ Dale Price

DALE PRICE (P55578)

Trial Attorney

DETROIT FIELD OFFICE

Patrick V. McNamara

477 Michigan Avenue, Room 865

Detroit, Michigan 48226

Dale.Price@EEOC.GOV 

Tel. No. (313) 226-7808

Fax No. (313) 226-6584

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 2 of 50 Pg ID 1900
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.

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CIVIL ACTION NO. 

2:14-CV-13710

Hon. Sean F. Cox

Magistrate Judge 

David R. Grand

Memorandum in Support of Plaintiff EEOC’s 

Answer to Defendant’s Motion for Summary Judgment

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 3 of 50 Pg ID 1901
ii

Table of Contents

Counter-Statement of the Issues .............................................................iv

Table of Authorities.................................................................................vii

Controlling Authority...............................................................................ix

Index of Exhibits .......................................................................................x

I. The Court Should Deny Defendant’s Motion For Summary 

Judgment Based On The Dress Code ..............................................1

A. Defendant’s Dress Code .................................................................1

B. Religious-Belief Claim ...................................................................5

C. Thomas Rost’s Comments are Direct Evidence that Sex 

Stereotyping Motivated Stephens’s Termination .........................6

D. A Sex-specific dress code does not justify Stephens’s Termination

......................................................................................................12

1. The Dress Code is a Pretext. .......................................................13

2. Despite Stephens’s Willingness to Dress Professionally, 

Defendant Wanted to Impose Rost’s Stereotypes Upon Her. .....13

3. Imposition of the Dress Code is not a Legitimate, 

Nondiscriminatory Reason for Stephens’s Firing. ......................16

E. Catering to customer preference based on sex is discriminatory.

......................................................................................................17

II. RFRA Does Not Authorize Stephens’s Firing................................21

A. Eliminating Workplace Sex Discrimination is a Compelling 

Governmental Interest ................................................................22

B. Defendant would not be substantially burdened under these facts.

......................................................................................................23

C. Defendant’s “Least Restrictive Means” is the Abrogation of Title 

VII and the Foreswearing of the Compelling Interest in 

Eradicating Sex Discrimination for Countless Employees.........27

III. Defendant Is Liable For Sex Discrimination Under Its Clothing 

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 4 of 50 Pg ID 1902
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Allowance Policy.............................................................................29

A. Defendant’s Procedural Arguments are Without Merit..............29

B. The Defendant Continues to Discriminate Against Female 

Employees Through Inferior Clothing Allowances. ....................32

IV. Conclusion ......................................................................................34

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Counter-Statement of the Issues

1. The Defendant maintains a sex-differentiated dress code for 

employees who interact with the public. Aimee Stephens indicated 

that she was willing to abide fully by the dress code for female 

employees, but was discharged before she had the opportunity to 

show up at work. Can the existence of a sex-differentiated dress 

code insulate Defendant from liability where Thomas Rost admits 

he was motivated by sexual stereotypes in making the firing 

decision?

The Commission answers “No.”

2. The Defendant asserts that permitting Aimee Stephens to present 

in female clothing compliant with its dress code would have been 

disturbing to its customers. Can Defendant use speculative 

concerns regarding customer preference to insulate itself from 

liability under Title VII?

The Commission answers “No.”

3. The Defendant asserts that its religious exercise would have been 

burdened by paying for Aimee Stephens’s clothing despite never 

having purchased clothes for a female funeral director and despite 

the fact that it did not start paying for clothing for any female 

employees prior to October 2014. Does this speculative cost 

constitute a substantial burden under RFRA?

The Commission answers “No.”

4. Even if being forced to pay for Aimee Stephens’s clothing had 

constituted a substantial burden on RGGR’s religious exercise, has 

the Commission shown that enforcing Title VII against Defendant 

is the least restrictive means of achieving the compelling 

governmental interest of eradicating sex discrimination in the 

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workplace?

The Commission answers “Yes.”

5. During the investigation of Aimee Stephens’s charge of sex 

discrimination, the Defendant told the Commission that female 

employees were not provided a clothing allowance. Further, 

Defendant was given the chance to provide evidence and to 

conciliate the clothing-allowance issue. Is the issue of the clothing 

allowance properly before the Court for resolution on the merits?

The Commission answers “Yes.”

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vi

Table of Authorities

Page(s)

Cases

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014).........................................................................28

Carroll v. Talman Federal Sav. & Loan Ass'n of Chicago,

604 F.2d 1028 (7th Cir. 1979).............................................................18

Chavez v. Credit Nation Auto Sales,

LLC, No. 14-14596, 2016 WL 158820.................................................11

Cicero v. Borg-Warner, Inc.,

280 F.3d 579 (6th Cir. 2002)...............................................................12

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

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

Sept. 15, 2015) ....................................................................................11

Diaz v. Pan American World Airways, Inc.,

442 F.2d 385 (5th Cir. 1971)......................................................... 19, 21

East Texas Baptist Univ. v. Burwell,

793 F.3d 449 (5th Cir. 2015)...............................................................26

EEOC v. Bailey Co.,

563 F.2d 439 (6th Cir. 1977)................................................... 29, 30, 31

EEOC v. Cambridge Tile Mfg. Co.,

590 F.2d 205 (6th Cir. 1979)......................................................... 30, 31

EEOC v. Fremont Christian School,

781 F.2d 1362 (9th Cir. 1986).............................................................22

EEOC v. Kronos, Inc.,

620 F.3d 287 (3rd Cir. 2010)...............................................................39

EEOC v. St. Anne’s Hospital of Chicago, Inc.,

664 F.2d 128 (7th Cir. 1981)...............................................................21

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 8 of 50 Pg ID 1906
vii

Fabian v. Hospital of Central Connecticut,

No. 3:12-cv-1154, __ F. Supp. 3d __, 2016 WL 1089178 (D. 

Conn. March 18, 2016)........................................................................10

Fernandez v. Wynn Oil Co.,

653 F.2d 1273 (9th Cir. 1981).............................................................19

G.G. v. Gloucester Cty. School Bd.,

__F.3d__, 2016 WL 1567467 (4th Cir. Apr. 19, 2016)........................15

General Telephone Co. v EEOC,

446 U.S. 318 (1980).............................................................................29

Jacklyn v. Schering–Plough Healthcare Prods. Sales Corp.,

176 F.3d 921 (6th Cir.1999)..................................................................7

Jesperson v. Harrah’s Operating Co.,

444. F.3d 1104 (9th Cir. 2006)..............................................................4

Jesperson v. Harrah’s Operating Co.,

444 F.3d 1104 (9th Cir. 2006)....................................................... 14, 17

Kaemmerling v. Lappin,

553 F.3d 669 (D.C.Cir.2008)...............................................................25

Laderach v. U-Haul of Northwestern Ohio,

207 F.3d 825 (6th Cir. 2000).................................................................7

Manzer v. Diamond Shamrock Chems. Co.,

29 F.3d 1078 (6th Cir.1994)..................................................................7

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).............................................................................16

Michigan Catholic Conference & Catholic Family Servs. v. 

Burwell,

807 F.3d 738 (6th Cir. 2015)...............................................................25

Norbuta v. Loctite Corp.,

181 F.3d 102 (6th Cir.1999) (unpublished) ..........................................7

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 9 of 50 Pg ID 1907
viii

Olsen v. Marriott Intern., Inc.,

75 F.Supp.2d 1052 (D. Ariz. 1999) .....................................................19

Price Waterhouse v. Hopkins,

490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ...... 7, 13, 14, 16

Rucker v. Higher Educational Aids Bd.,

669 F.3d 1179 (7th Cir. 1982).............................................................18

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004)......................................................... 10, 13

Turic v. Holland Hospitality, Inc.,

842 F.Supp. 971 (W.D. Mich. 1994)....................................................18

Statutes

42 U.S.C. § 2000bb–1(a), (b)....................................................................23

42 U.S.C. § 2000e–2(m)...........................................................................10

Other Authorities

29 C.F.R. § 1604.1(ii)...............................................................................18

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Controlling Authority

Employment Division v. Smith, 494 U.S. 872 (1990).

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

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

Michigan Catholic Conf. v. Burwell, 755 F.3d 372 (6th Cir. 2014), 

vacated and remanded, 135 S. Ct. 1914; affirmed after remand, 807 

F.3d 738 (6th Cir. 2015).

Mt. Elliott Cemetery Ass’n. v City of Troy, 171 F.3d 398 (6th Cir. 1999). 

Hansen v. Ann Arbor Pub. Schools, 293 F. Supp. 2d 780 (E.D. Mich. 

2003).

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Index of Exhibits

Exhibit A, Stephens Letter (Doc. 51-2)

Exhibit B, Rost 30(b)(6) (Doc. 51-3) 

Exhibit F, Shaffer Dep. (Doc. 51-7) 

Exhibit I, Kish Dep. (Doc. 51-10) 

Exhibit J, Cash Dep. (Doc. 51-11) 

Exhibit K, Crawford Dep. (Doc. 51-12)

Exhibit M, McKie Dep. (Doc. 51-14) 

Exhibit N, Kowalewski Dep. (Doc. 51-15) 

Exhibit O, Rost Dep. (Doc. 51-16) 

Exhibit P, Clothing Allowance Benefits Checks (Doc. 51-17)

Exhibit Q, Stephens Dep. (Doc. 51-18) 

Exhibit S, Dress Code (Doc. 51-20)

Exhibit T, Defendant’s Responses to Plaintiff’s Frist Set of Discovery 

Requests (Doc. 51-21)

Exhibit U, Charge

Exhibit V, Onsite Investigation Notes

Exhibit W, Letter of Determination

Exhibit U, Charge

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xi

Exhibit V, Onsite Investigation Notes

Exhibit W, Letter of Determination

Exhibit X, Rost 30(b)(6) Dep. 

Exhibit Y, Kowalewski Dep. 

Exhibit Z, Cash Dep. 

Exhibit AA, Kish Dep. 

Exhibit AB, Shaffer Dep. 

Exhibit AC, Crawford Dep. 

Exhibit AD, Rost Dep. 

Exhibit AE, Stephens Dep. 

Exhibit AF, Severance Agreement

Exhibit AG, McKie Dep.

Exhibit AH, http://sammichaels.com/about/

Exhibit AI, Defendant’s Position Statement

Exhibit AJ, The Experience of Healing Diagrams

Case 1, Chavez v. Credit Nation Auto Sales, __Fed.Appx.__, 2016 WL 

158820 (11th Cir. Jan. 14, 2006)

Case 2, Dawson v. H&H Elec., Inc., No. 4:14-00583, 2015 WL 5437101 

(E.D. Ark. Sept. 15, 2015)

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 13 of 50 Pg ID 1911
xii

Case 3, Fabian v. Hospital of Central Connecticut, No. 3:12-cv-1154, __F. 

Supp. 3d __, 2016 WL 1089178 (D. Conn. March 18, 2016)

Case 4, G.G. v. Gloucester Cty. School Bd., __F.3d__, 2016 WL 1567467 

(4th Cir. Apr. 19, 2016)

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 14 of 50 Pg ID 1912
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I. THE COURT SHOULD DENY DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT BASED ON THE DRESS CODE

The Equal Employment Opportunity Commission brought this 

Title VII, sex-discrimination action after receiving and investigating a

charge of discrimination filed by Aimee Stephens, a transgender woman

who served as a funeral director/embalmer for the Defendant for nearly 

six years under the name of Anthony Stephens. During the course of the 

investigation, evidence was uncovered demonstrating that Defendant 

maintained a discriminatory clothing-allowance policy that favored male 

employees who interacted with the public over their comparable female 

co-workers.

After investigation, the Commission concluded that the Defendant 

fired Stephens based on sex, but Defendant now asserts that summary 

judgment should be entered in its favor.

As shown below, Defendant’s arguments lack factual and legal 

merit, and summary judgment should not only be denied to Defendant, 

but granted in favor of the Commission.

A. Defendant’s Dress Code

Defendant asserts that enforcement of its sex-specific dress code 

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 15 of 50 Pg ID 1913
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is a legitimate non-discriminatory reason for the termination of 

Aimee Stephens. The dress code is as follows:

MEN

SUITS: BLACK GRAY, OR DARK BLUE ONLY (as selected) with

conservative styling. Coats should be buttoned at all times. Fasten

only the middle button on a three button coat

If vests are worn, they should match the suit Sweaters are not 

acceptable as a vest NOTHING should be carried in the breast 

pocket except glasses which are not in a case.

SHIRTS: WHITE OR WHITE ON WHITE ONLY, with regular 

medium length collars. (Button-down style collars are NOT 

acceptable). Shirts should always be clean. Collars must be neat.

TIES: As selected by company, or very similar.

SOCKS: PLAIN BLACK OR DARK BLUE SOCKS.

SHOES: BLACK OR DARK BLUE ONLY. (Sport styles, high tops

or suede shoes are not acceptable). Shoes should always be wellpolished.

TOPCOATS: BLACK, GRAY OR DARK BLUE CLOTH ONLY. A

current style and length. A velvet collar, or gray coat with velvet 

collar are optional. No raincoats with or without liners except in 

rainy weather. Plastic coats are not permitted.

GLOVES: BLACK GRAY OR DARK BLUE ONLY.

PINS: Small service or fraternity pins may be worn.

PERSONAL GROOMING: Hair should be neatly trimmed and 

combed at all times. (Extreme hair styles, sideburns, or beards are 

NOT acceptable). Neat moustaches are allowed. Every man should 

always be clean shaven. Nails should always be trimmed and clean.

PART-TIME MEN: Should wear conservative, dark, business suits, 

avoiding light brown, light blue, light gray, or large patterns. All 

part time personnel should follow all details of dress as specified, as 

near as possible.

FUNERAL DIRECTORS ON DUTY: Are responsible for the 

appearance of the staff assisting them on services and are 

responsible for personnel on evening duty.

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WOMEN

Because of the particular nature of our business, please dress

conservatively. A suit or a plain conservative dress would be 

appropriate, or as furnished by funeral home. Avoid prints, bright 

colored materials and large flashy jewelry. A sleeve is necessary, a 

below elbow sleeve is preferred.

Ex. S, Dress Code (Doc. 51-20). The code presumes that funeral 

directors will be male, placing “Funeral Directors on Duty” in the 

subsection for male employees. 

Parts of the code (“selected,” “selected by company,”) refer to 

Defendant’s policy to provide clothing directly to male employees. Also, 

deposition testimony indicated that the dress code is interpreted 

generously in favor of male employees, some of whom have goatees. Ex.

Y, Kowalewski Dep. (Doc. 51-15) 35:9-36:10. It is also stricter than 

written for females, who are expected to wear skirts. Ex. AD, Rost Dep. 

51:13-16. Rost admitted that skirts are a personal preference and have 

nothing to do with industry standards. Id. Also contrary to the code as 

written, clothes have never been furnished to women, but are to 

part-time men. Ex. AD, Rost Dep. 13:4-16:22. 

Indeed, the code cannot be read separately from the clothing 

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allowance, which has been consistently afforded to all male employees 

who interact with the public but not to females in any form until October 

2014. Consequently, the Defendant’s claim that the dress code does not 

impose unequal burdens is contrary to fact. See Doc. 54 at Pg ID 

1303-1305. Thus, on that basis, this case can be distinguished from the 

principal precedent upon which RGGR relies, Jesperson v. Harrah’s 

Operating Co., 444. F.3d 1104 (9th Cir. 2006).

Too, Defendant’s argument that there is a dress code for funeral 

directors which is separate from other employees, Doc. 54 at Pg ID 1304,

is incorrect, and indeed is contradicted by Rost’s affidavit in support of 

the motion for summary judgment. See Doc. 54-2, Rost Affidavit paras. 

56-57 at Pg ID 1337. The same expectations apply for all employees who 

interact with the public, males and females. Ex. I, Kish Dep. (Doc. 51-10) 

17:25-19:5, 57:12-58:4; and Ex. O, Rost Dep. (Doc. 51-3) at 51:1-8.

Defendant also asserts that had there been any female funeral directors, 

they would have been afforded clothing comparable to the men. Doc 54 at 

Pg ID 1304-1305. However, this speculative claim is undercut by the fact 

RGGR contracts for clothing with Sam Michael’s, and has for at least a 

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decade. Ex. O, Rost Dep. (Doc. 51-16) 13:22-24. It is undisputed that Sam 

Michael’s is a men’s clothier. Ex. AH, http://sammichaels.com/about/

(last visited May 2, 2016). At a minimum, it is clear that Defendant does 

not anticipate having a female funeral director and is not prepared to 

clothe one. 

B. Religious-Belief Claim

Rost asserts that his continued employment of Aimee Stephens 

would dishonor God:

21 Q So, your personal faith as a follower of Jesus

22 Christ tells you that it would be improper

23 or -- to employ someone like the person you

24 knew as Anthony Stephens?

25 A Absolutely.

55: 1 Q Okay. You indicated as part of the healing

2 process, but what about your religious beliefs

3 specifically are violated by continuing to

4 employ Stephens?

5 A I believe it would violate my faith, yes,

6 absolutely.

7 Q Okay. What aspects of it?

8 A Well, I believe that God created a man as a man

9 and God created a woman as a woman. And to --

10 to not honor that, I would feel it's a

11 violation of my faith, absolutely.

12 Q So Stephens would be presenting in a way that

13 offended your religious beliefs, essentially?

14 A Yes. Yes.

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Ex. B, Rost 30(b)(6) Dep. (Doc. 51-3) 54:21-55:19. In addition, he 

states that his religious beliefs indicate how others should act with 

respect to sex and gender:

42. I sincerely believe that the Bible teaches that a person’s sex is 

an immutable God-given gift and that people should not deny or 

attempt to change their sex.

* * *

44. I sincerely believe that 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.

See Doc 54-2, Rost Affidavit at Pg ID 1334.

Indeed, Defendant now goes so far to say that its dress code is a 

proxy for Rost’s religious beliefs regarding the sexes. See Doc. 55 at Pg ID 

1692 (“R.G.’s dress code ensures that R.G. does not violate Rost’s

religious belief that a person’s sex (whether male or female) is an 

immutable God-given gift”).

C. Thomas Rost’s Comments are Direct Evidence that 

Sex Stereotyping Motivated Stephens’s Termination

According to the Defendant, permitting Stephens to present as 

female would disrupt the business and even “harm” its clients because of 

the claimed effect on their healing process. Thus, Defendant claims that 

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7

it fired Stephens to enforce its sex-specific dress code. Defendant’s 

argument is disingenuous and even if true, supports a finding that its 

justification for Stephens’ termination constitutes evidence of 

discriminatory animus in violation of Title VII.

“In discrimination cases, direct evidence is that evidence which, if 

believed, requires the conclusion that unlawful discrimination was 

at least a motivating factor in the employer's actions.” Jacklyn v. 

Schering–Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 

(6th Cir.1999) (citations omitted). See Norbuta v. Loctite Corp., 181 

F.3d 102 (6th Cir.1999) (unpublished) (“[D]irect evidence proves 

the existence of a fact without any inferences or presumptions.”). 

See also Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 

1081 (6th Cir.1994) (evidence that requires the jury to infer a fact is 

not direct evidence). “Once there is credible direct evidence, the 

burden of persuasion shifts to the defendant to show that it would 

have terminated the plaintiff's employment had it not been 

motivated by discrimination.” Jacklyn v. Schering Plough 

Healthcare Prods. Sales Corp., 176 F.3d at 926 (citations omitted).

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 

L.Ed.2d 268 (1989), the Supreme Court held: “In saying that 

gender played a motivating part in an employment decision, we 

mean that, if we asked the employer at the moment of the decision 

what its reasons were and if we received a truthful response, one of 

those reasons would be that the applicant or employee was a 

woman.”

Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825, 829 (6th

Cir. 2000). Such is the case here—Rost’s testimony demonstrates that 

the real reason Stephens was fired was because Stephens did not 

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8

conform to Rost’s stereotypes as to how men and women are supposed to 

behave and present themselves.

Rost is forthright in admitting that he objected to Stephens’s

decision to present as female. In addition to the statements in I.B. above, 

when asked by his own attorney why he fired Stephens, Rost re-affirmed 

that Stephens’s non-conformance with his beliefs regarding the behavior 

of men and women prompted the decision:

Q Okay. Why did you -- what was the specific

 reason that you terminated Stephens?

A Well, because he -- he was no longer going to

 represent himself as a man. He wanted to dress

 as a woman.

Ex. B, Rost 30(b)(6) Dep. (Doc. 51-3) 135:24-136:1.

Rost also testified that he objected to Stephens’s use of “Aimee” in 

the charge of discrimination, saying that this made him 

“uncomfortable....because he’s [Stephens] a man.” Ex. O, Rost Dep. (Doc. 

51-16) 23:4-8.

And Rost indicated discomfort with the idea of Stephens wearing 

female clothing outside of work, and concern with how the public would 

react:

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18 You testified earlier when you were

19 asked by your Counsel, you said that you would

20 not have had a problem with Stephens presenting

21 as female outside of work.· Did I hear that

22 correctly?

23 A That's true.

24 Q Okay. What if a customer would have seen that

25 and complained to you about it, what would you

Page 31

1 have done?

2· A Don't know.

3 Q Do you think there might have been -- you

4 indicated earlier, I believe, that you get a

5 lot of word-of-mouth business, people coming

6 back, families and stuff like that?

7 A Oh, yes.

8 Q Okay.· Would you say that's the bulk of your --

9 A Repeat business or -- yes, or in family before

10 we call it, yes.

11 Q Okay. So if -- so would you have been

12 comfortable with word getting around that

13 Stephens was dressing as female outside of

14 work?

15 A I don't know. I probably would be

16 uncomfortable with that.· But it never came up,

17 so --

18 Q Okay. Would it have affected Stephens'

19 employment if word had gotten around?

20 A Don't know.

Ex. AD, Rost Dep. 30:18-31:20. 

The bottom line is that, at a minimum, a jury could reasonably 

conclude that sex stereotyping motivated Rost’s statements and actions, 

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10

at least in part.

1 In Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 

2004), the Sixth Circuit explained that an employer violates Title VII 

when it takes action against an employee based on “[s]ex stereotyping,” 

that is, “based on a person’s gender non-conforming behavior.” This 

includes penalizing an employee for dress or mannerisms that, in the 

employer’s mind, conform to the wrong sex stereotypes. 

As the Court noted in its opinion denying Defendant’s Motion to 

Dismiss, Title VII “protects transsexual persons from discrimination for 

failing to act in accordance and/or identify with their perceived sex or 

gender.” Doc. 13 at Pg ID 189 (quoting Myers v. Cuyahoga Cty., 182 Fed. 

Appx. 510, 519 (6th Cir. 2006)); see also Fabian v. Hospital of Central 

Connecticut, No. 3:12-cv-1154, __ F. Supp. 3d __, 2016 WL 1089178 at 

*13 (D. Conn. March 18, 2016) (“discrimination on the basis of gender 

stereotypes ... constitutes discrimination on the basis of the properties or 

characteristics typically manifested in sum as male and female—and 

that discrimination is literally discrimination ‘because of sex’”).

 

1 A Title VII plaintiff has a valid sex discrimination claim if she can 

demonstrate that sex “was a motivating factor for any employment 

practice, even if other factors also motivated the practice.” 42 U.S.C. § 

2000e–2(m).

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11

Rost’s admissions clearly support a finding that “Stephens’ failure 

to conform to sex stereotypes was the driving force behind the Funeral 

Home’s decision to fire Stephens.” See Doc. 13 at Pg ID 195. In that 

Title VII prohibits an employer from acting on such stereotypes, 

summary judgment for the EEOC on the basis of sex stereotyping is 

appropriate on this evidence alone. 

Defendant’s insistence that Stephens wear men’s clothing at work, 

despite knowledge that she now identifies as female, is sex 

discrimination in violation of Title VII. See Chavez v. Credit Nation Auto 

Sales, LLC, No. 14-14596, 2016 WL 158820 at *7 (transgender plaintiff 

told she could not wear a dress after completing transition because it 

would be “disruptive” was 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) (amongst the “ample evidence” of sex discrimination 

provided by transgender plaintiff were an order not to wear feminine 

clothes at work and the termination for being “a distraction” after 

wearing feminine attire at work).

Defendant’s argument is also dubious on the factual record. First, 

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12

Rost never proposed that Stephens could continue to work—in men’s 

clothing— prior to his deposition. Indeed, the possibility was raised by 

defense counsel as a “hypothetical”:

Q So hypothetically speaking, if Stephens had

told you that he believed that he was a woman,

but would only present as a woman outside of

work, would you have terminated him?

A No.

Ex. X, Rost 30(b)(6) Dep. 137:11-15.

At a minimum, given the certitude of Rost’s opinions on the 

wrongness of transgenderism, it is open to question whether he could, in 

fact, tolerate such, and a jury could consider the hypothetical proposal a

pretextual, after-the-fact rationale. Cicero v. Borg-Warner, Inc., 280 F.3d 

579, 592 (6th Cir. 2002). 

D. A Sex-specific dress code does not justify Stephens’s 

Termination

Summary judgment must be denied because there is evidence that 

Defendant’s citation to the dress code is merely a pretext. In addition, 

Defendant’s reliance on the dress code is misplaced because even if the 

dress code were the reason for Stephens’ termination, requiring 

Stephens to comply based on her biological gender rather than her 

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13

gender identity is discrimination because of sex in violation of Title VII.

Thus, the dress code does not rescue Defendant from liability.

1. The Dress Code is a Pretext.

A jury could find the dress code defense pretextual because Rost 

did not discuss the code when firing Stephens, merely telling her that 

“this is not going to work out [ ] [a]nd that your services are no longer 

needed here.” See Ex. B, Rost Dep. 126:1-127:10, Pg ID 666. Moreover, as 

discussed above, a jury could find that RGGR’s current suggestion that it 

did not care if Stephens presented as female when outside of work is also 

unworthy of credence. In short, a jury is not required to accept the 

assertion of the dress code as dispositive.

2. Despite Stephens’s Willingness to Dress Professionally, 

Defendant Wanted to Impose Rost’s Stereotypes Upon 

Her.

The Defendant asserts that it was permitted to force Stephens to 

present in masculine clothing under a sex-specific dress code and to fire 

her if she did not. Specifically, Defendant argues that “unlike the 

employers in Price Waterhouse or Smith, RGGR never indicated that 

Stephens’s behavior was too feminine or not masculine enough. RGGR

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14

simply maintained that Stephens, like all other employees, whether 

male or female, must comply with the dress code.” Doc. 54 at Pg ID 1307.

To the contrary, RGGR’s acts do demonstrate sex stereotyping, 

albeit of a different sort than that exhibited in Price Waterhouse. Here, 

RGGR demonstrated that it expected Stephens to conform to Rost’s 

stereotypes for how men and women are supposed to behave and present 

themselves. When Stephens informed Rost that she was transitioning to 

female, Stephens indicated that she fully intended to dress 

professionally and abide by RGGR’s dress requirements for women. Ex. 

S, Dress Code (Doc. 51-20); Ex. A, Stephens Letter (Doc. 51-2); Ex. Q, 

Stephens Dep. (Doc. 51-18) 133:6-133:9. In other words, she still 

intended to meet all of the Respondent’s legitimate business 

expectations. Thus, this case differs from Jesperson v. Harrah’s 

Operating Co., 444 F.3d 1104 (9th Cir. 2006), where the plaintiff was 

engaged in a challenge to the code itself.

Defendant’s analogies—to allowing an employee to switch clothing 

every day and to allowing female employees to work topless—display 

Defendant’s sex stereotypes about Aimee Stephens. Doc 54 at Pg ID 

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15

1311. What Stephens proposed in her letter was neither obscene nor 

anything other than tasteful and conservative dress, consistent with 

RGGR’s own, sex-specific guidelines. She was not intending to draw 

attention to herself—to the contrary, she was fully sensitive to the 

concerns of the grieving and intended to blend in. Ex. X, Rost 30(b)(6) 

Dep. 75:5-76:5, 108:21-24; Ex. AE Stephens Dep. 90:1-90:2, Ex. A, 

Stephens Letter (Doc. 51-2). Hence, the fact that she would present 

according to the dress code renders Defendant’s parade of horribles 

inapplicable. Doc 54 at Pg ID 1310-1311.

Defendant’s claim that transgender people render sex-specific 

dress codes void is unpersuasive and unsupported by precedent. Indeed, 

what precedent exists suggests no such thing. See G.G. v. Gloucester Cty. 

School Bd., __F.3d__, 2016 WL 1567467 at *8 (4th Cir. Apr. 19, 2016) 

(upholding Department of Education regulatory policy permitting 

transgender student to use bathroom consistent with the student’s 

gender identity and noting that the decision does not change validity of 

sex-segregated restrooms). 

Additionally, any sex-specific dress code, including Defendant’s, is 

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premised on self-identification. The Defendant’s emphasis on biological 

sex cannot be dispositive, because taken to its logical conclusion, it would 

create an employer’s right to determine the “proper” gender identity, 

including, as was tried here, the right to seek very sensitive personal 

information. See Doc. 34 and 45, denying Defendant’s attempt to 

discover, inter alia, information on Stephens’s genitalia. Indeed, the real 

parade of horribles is not the specter of topless female laborers, but 

rather employers using sex-specific dress codes to deny employment to 

transgender people entirely. 

3. Imposition of the Dress Code is not a Legitimate, 

Nondiscriminatory Reason for Stephens’s Firing.

The Supreme Court has emphasized that, to pass muster under 

Title VII, any employment action taken against a protected employee 

must be legitimate and nondiscriminatory—a reasonable basis for the 

particular action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-803 (1973). 

In the Title VII context, if an employee’s individual expression is 

tied to a protected trait, such as race or sex, discrimination based on such 

expression is a violation of the law. Cf. Price Waterhouse v. Hopkins, 490 

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17

U.S. 228, 250-51 (1989) (plurality) (finding Title VII violation where 

employer demanded that employee's appearance and deportment match 

sex stereotype associated with her gender); Jespersen v. Harrah's 

Operating Co., Inc., 444 F.3d 1104, 1112 (9th Cir. 2006) (en banc ) (“If a 

grooming standard imposed on either sex amounts to impermissible 

stereotyping, something this record does not establish, a plaintiff of 

either sex may challenge that requirement under [Title VII].”) 

Here, it is clear that Defendant’s dress code embodies Rost’s 

sex-stereotypes. See Doc 55 at Pg ID 1692 (“R.G.’s dress code ensures 

that R.G. does not violate Rost’s religious belief that a person’s sex 

(whether male or female) is an immutable God-given gift”). A rationale 

based in sexual stereotypes cannot be as a legitimate non-discriminatory 

reason for Stephens’ firing, and must be rejected. 

Consequently, Defendant’s dress-code argument must fail.

E. Catering to customer preference based on sex is 

discriminatory.

Defendant spends much time stating that its dress code is part of 

the healing process, and asserting that Stephens would be a distraction 

in female clothing and even “harm” the clients. Doc 54 at Pg ID 1310.

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18

Such language is itself evidence of stereotypes, especially since Stephens 

was fired without even having the opportunity to work after presenting 

her letter. See Carroll v. Talman Federal Sav. & Loan Ass'n of Chicago, 

604 F.2d 1028, 1033 (7th Cir. 1979) (“‘assumptions steeped in ... 

stereotypes * * * are inconsistent with the purposes of the Act’”) (internal 

citation omitted). 

Title VII law establishes that no employee should be subjected to 

discrimination merely because a customer demands it. Cf. Rucker v. 

Higher Educational Aids Bd., 669 F.3d 1179, 1181 (7th Cir. 1982) (“it is 

clearly forbidden by Title VII, to refuse on racial grounds to hire someone 

because your customers or clientele do not like his race”); Turic v. 

Holland Hospitality, Inc., 842 F.Supp. 971, 978 n.7 (W.D. Mich. 1994) 

(customer or colleague preference does not provides a justification for 

race discrimination); 29 C.F.R. § 1604.1(ii) (stating “the refusal to hire an 

individual because of the preferences of co-workers, the employer, clients 

or customers” not permissible under Title VII).

Therefore, catering to a customer’s assumed preferences or

prejudices is not a defense to a claim of sex discrimination. See

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19

Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) 

(“stereotyped customer preference [cannot] justify a sexually 

discriminatory practice,” therefore female employee could not lawfully be 

denied a promotion because employer's South American clients would 

only work with males); Diaz v. Pan American World Airways, Inc., 442 

F.2d 385, 389 (5th Cir. 1971) (rejecting customer preference for female 

flight attendants, stating “[w]hile we recognize that the public's 

expectation of finding one sex in a particular role may cause some initial 

difficulty, it would be totally anomalous if we were to allow the 

preferences and prejudices of the customers to determine whether the 

sex discrimination was valid. Indeed, it was, to a large, extent, these very 

prejudices the Act was meant to overcome”); Olsen v. Marriott Intern., 

Inc., 75 F.Supp.2d 1052 (D. Ariz. 1999) (customer preference could not be 

invoked to prevent hiring of male massage therapist).2

 2 Notably, Rost’s willingness to cater to customer preference 

extends beyond exclusion of transgender persons:

Q....[I]f there was an objection to having an

· African-American employee present during funeral,

would you adhere to that?

· · A· ·If there was an objection?· Well, I can't ever · · · · see it happening, so I don't know. · · · Q· ·Okay.· But if there was?· I mean, there are

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20

Moreover, Defendant’s claim—which rests solely on Rost’s 

speculation alone, sight unseen and uninformed by any actual 

experience—that transgender persons presenting according to their 

identity will necessarily be distracting and harmful to grieving clients is 

unsubstantiated and is the very essence of stereotyping that must be 

rejected out of hand. Rost terminated Stephens before she interacted 

with clients as a woman. Thus, there is no tangible evidence to support 

Rost’s belief that the clients would consider Stephens’ transgender 

status to be a distraction. Additionally, Rost has not offered any example 

of how Stephens’s female presentation would “harm” the grieving clients.

 

· · · · people -- unfortunately there are people out

· · · · there who have racist mindsets. . . .

• *

BY MR. PRICE:

· Q· ·And if they thought that was -- the presence of 

· · · · an African-American staffer was disrupting

· · · · their grieving experience, what would you do?

· · A· ·I don't know.

· · Q· ·Would you remove the person?

· · A· ·I don't know.

· · Q· ·Would you remove the employee?

· · A· ·I don't know.

· · Q· ·You might?

· · A· ·I might.· They might temporarily, but, you

· · · ·know, I've never had that happen, so I don't

· · · ·know.

Ex. AD, Rost Dep. 27:22-28:20 .

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Even if Rost believed that retaining Stephens would harm his 

business, his discriminatory behavior would not be justified. The 

potential loss of business and customers or the possibility of economic 

backlash has long been rejected in customer-preference cases. Therefore, 

such “harm” does not provide Defendant with an independent, 

legitimate, and nondiscriminatory reason to justify Stephens’

termination. See EEOC v. St. Anne’s Hospital of Chicago, Inc., 664 F.2d 

128, 133 (7th Cir. 1981) (Title VII does not permit an “employer to reject 

job applicants on the basis of sex because the prejudicial preferences of 

customers were a threat to the business”); cf. Diaz v. Pan Am. World 

Airways, Inc., 442 F.2d 385, 389 (5th Cir.), cert. denied, 404 U.S. 950 

(1971) (“it would be totally anomalous if we were to allow the preferences 

and prejudices of the customers to determine whether the sex 

discrimination was valid. Indeed, it was, to a large extent, these very 

prejudices the Act was meant to overcome”). Accordingly, Defendant’s 

customer preference/harm justification must fail. 

II. RFRA DOES NOT AUTHORIZE STEPHENS’S FIRING

RFRA has never been interpreted to insulate an employer from 

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22

liability under Title VII, and should not be here. In its Answer to the 

Commission’s amended complaint, Defendant raised for the first time

that it was justified in firing Stephens because she offended Rost’s

religious beliefs. See Doc. 22, Answer to Amended Complaint, p. 5 

(Affirmative Defenses 12-13). Defendant’s religious-freedom defense 

lacks merit.

A. Eliminating Workplace Sex Discrimination is a 

Compelling Governmental Interest

Congress’s mandate to eliminate workplace discrimination is a

compelling governmental interest, as Defendant acknowledges:

By enacting Title VII, 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.

EEOC v. Fremont Christian School, 781 F.2d 1362, 1368-69 (9th Cir. 

1986) (quoting EEOC v. Pacific Press Pub. Ass’n., 676 F.2d 1272, 1280 

(9th Cir. 1982)). This is the governmental interest against which 

Defendant’s assertion of religious belief must be assessed. See also Doc

51 at Pg ID 628-630.

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B. Defendant would not be substantially burdened 

under these facts.

The Religious Freedom Restoration Act (“RFRA”) prohibits the 

government from substantially burdening the exercise of religion unless 

the government demonstrates that the burden is in furtherance of a 

compelling governmental interest and is the least restrictive means of 

furthering that interest. 42 U.S.C. § 2000bb–1(a), (b).

However, Defendant, speaking through Rost, maintains that its 

religious exercise would be burdened by having to provide female 

clothing to Stephens. But RGGR has never purchased clothing for a 

female funeral director, indeed, never paid for the clothing of any female 

employee until October 2014. Ex. O, Rost Dep. (Doc. 51-16) 15:16-16:12; 

Ex. I, Kish Dep. (Doc. 51-10) 20:16-21:3; Ex. P, Clothing Allowance 

Benefits Checks (Doc. 51-17). It is undisputed that Rost fired Stephens in 

2013. Further, Defendant did not identify a clothing purchase as an issue 

in his response to discovery requests. Ex. T, Defendant’s Responses to 

Plaintiff’s Frist Set of Discovery Requests (Doc. 51-21).

As stated previously, there is no separate funeral-director dress 

code—there are simply different requirements for male and female 

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employees. Consequently, Defendant’s statement that it would have had 

to pay for a suit of women’s clothing is speculative and unsupported. For 

her part, Stephens herself planned to wear her own attire and did not

ask Defendant to provide clothing. Ex. A, Stephens Letter (Doc. 51-2). 

Consequently, Defendant would not have been burdened by a financial 

outlay that was not contemplated by either Stephens or Rost.

And even if there is a burden in having to provide Stephens with 

clothing, Defendant has not established that providing two suits of 

clothing constitutes a substantial burden. In fact, Defendant cannot even 

specify how much it would have cost to have such suits made. Using its 

own stipend calculation for full-time females, the amount would have 

been as little as $150—which is less than Defendant pays for men’s suits. 

Such is not a substantial burden—in fact, it is a lesser burden. Further, 

Defendant’s practice of providing suits, ties and shirts to its male funeral 

directors whenever they desired them negates the view that providing 

female clothing to Stephens would be unduly costly. Indeed, as a male 

funeral director, Stephens had already received clothing at Defendant’s 

expense for six years. Thus, Defendant’s provision of female rather than 

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25

male attire cannot constitute a substantial burden.

Finally, Defendant’s argument that its purchase of two suits of 

women’s clothing constituted a “substantial burden” is spurious and 

certainly does not justify terminating Stephens’s employment. When 

Stephens informed Defendant about her transition, she stated that she 

would be willing to provide her own clothing. In that Stephens’s offer 

relieved Defendant of the need to provide female attire, Defendant has 

failed to establish any basis for concluding that it was engaged in a 

religious exercise or that such engagement would result in a substantial 

burden. See Michigan Catholic Conference & Catholic Family Servs. v. 

Burwell, 807 F.3d 738, 747 (6th Cir. 2015) (“Whether a law imposes a 

substantial burden on a party is something that a court must decide, not 

something that a party may simply allege.”); Kaemmerling v. Lappin, 

553 F.3d 669, 679 (D.C.Cir.2008) (“accept[ing ] as true the factual 

allegations that [appellants'] beliefs are sincere and of a religious 

nature—but not the legal conclusion, cast as a factual allegation, that 

[their] religious exercise is substantially burdened”).

Stripped of its unsustainable clothing-burden claim, Defendant’s 

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essential objection is that Stephens is behaving in a way which offends 

Rost’s religious beliefs. However, the perceived immorality of other 

persons cannot constitute a burden on Defendant’s religious exercise. 

Defendant was not being asked to facilitate Stephens’s behavior—it was 

being asked to respect her Title VII rights, regardless of how offensive 

Rost perceived her behavior to be from a religious standpoint. This is not 

cognizable under RFRA. As the Fifth Circuit noted in East Texas Baptist 

Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir. 2015) (emphasis in 

original):

Although the plaintiffs have identified several acts that offend 

their religious beliefs, the acts they are required to perform do not 

including providing access to or facilitating access to 

contraceptives. Instead, the acts that violate their faith are those of 

third parties. Because RFRA confers no right to challenge the 

independent conduct of third parties, we join our sister circuits in 

concluding that the plaintiffs have not shown a substantial burden 

on their religious exercise.

Such is the same here—Rost is not being asked to perform any 

actions which he finds religiously offensive. He is simply being asked to 

not terminate an employee he believes is acting contrary to his religious 

beliefs.

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C. Defendant’s “Least Restrictive Means” is the 

Abrogation of Title VII and the Foreswearing of the 

Compelling Interest in Eradicating Sex 

Discrimination for Countless Employees.

Defendant’s RFRA argument also fails because enforcement of 

Aimee Stephens’s Title VII right to be free of workplace sexual 

discrimination is the least restrictive means to achieve the government’s 

goal of eradicating sex discrimination and it is precisely tailored to 

achieve this goal.

The Defendant argues that the continued employment of Stephens 

is not the least restrictive means to achieve the EEOC’s interest in 

preventing discrimination and asks that the government not enforce 

Title VII where “distressed people” are served by persons who have to 

comply with dress codes. Doc 54 at Pg ID 1317. Or, in the alternative, the 

government could enforce Title VII only when transgender people are 

fired because the employer objects to them presenting according to their 

identity outside of work, but allowing them to fire such employees for 

refusing to wear employer-designated sex-specific uniforms on the job.

Id. While the above recommendations assuredly do not restrict 

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28

employers who make a religious objection, they are not means of 

addressing discrimination at all. RFRA limits government action to the 

least restrictive means necessary to achieve the governmental interest. 

RFRA does not prevent government from achieving its goals. However, 

Defendant’s solution—of not enforcing Title VII in these 

circumstances—would render null and void the Title VII rights of 

persons like Stephens, and leave them without remedy. 

This goes far beyond anything suggested by the most recent 

Supreme Court review of RFRA. In Burwell v. Hobby Lobby Stores, Inc., 

134 S. Ct. 2751 (2014), the Supreme Court held that RFRA exempted the 

employer from paying for certain contraceptive medications and devices 

which could also be abortifacient. Even there, the Court held that the 

government still had options to ensure the employees would have access 

to the disputed medications. See Burwell, 134 S. Ct. at 2780-82 (outlining 

available options to ensure access). Here, Defendant’s proposal leaves 

Stephens with no redress, and thus should be rejected.

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III. DEFENDANT IS LIABLE FOR SEX DISCRIMINATION

UNDER ITS CLOTHING ALLOWANCE POLICY

A. Defendant’s Procedural Arguments are Without Merit.

Finally, Defendant states that it is entitled to summary judgment 

on the sexually discriminatory clothing-allowance claim because the 

issue did not properly arise out of the investigation of Stephens’s sexual 

discrimination charge. The Defendant also alleges that it does not 

currently discriminate against female employees because it now pays a 

stipend to female employees of either $75 or $150 per year. 

The Supreme Court stated in General Telephone Co. v EEOC, 446 

U.S. 318, 331 (1980) that “[a]ny violations that the EEOC ascertains in 

the course of a reasonable investigation of the charging party’s complaint 

are actionable.” Accord EEOC v. Kronos, Inc., 620 F.3d 287, 297 (3rd Cir. 

2010) (“Once the EEOC begins an investigation, it is not required to 

ignore facts that support additional claims of discrimination if it 

uncovers such during the course of a reasonable investigation”).

Defendant argues that since the discriminatory clothing-allowance 

was not the subject of the Charge, the Commission cannot litigate it, 

citing EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977); Doc. 54 at Pg ID 

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30

1317-1320. Bailey is easily distinguished, and has been by the Sixth 

Circuit. Bailey involved a charge of sex discrimination upon which the 

Commission found no probable cause to believe discrimination had 

occurred. Instead, the Commission filed suit on a claim of alleged 

religious discrimination against a separate person entirely. Bailey Co., 

563 F.2d at 447-48. Hence, the Sixth Circuit held that the lawsuit could 

not have reasonably grown out of the investigation of the complaint. Id.

at 448-49.

Here, there is no dispute that Stephens filed a charge of sex and 

gender discrimination under Title VII. During the course of the

investigation, further evidence of sex discrimination was obtained in the 

form of undisputed evidence that Defendant had a clothing allowance 

which assisted male—and only male—employees to meet the 

requirements of Defendant’s dress code. Consequently, the allowance

was investigated (Ex. V, Onsite Notes) and subject to an offer of 

conciliation after a finding of cause to believe that RGGR had 

discriminated on the basis of sex with respect to both discharge and the 

clothing allowance. Ex. W, Letter of Determination.

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The situation here is much more like that of EEOC v. Cambridge 

Tile Mfg. Co., 590 F.2d 205 (6th Cir. 1979). In Cambridge Tile, two 

employees had filed charges, one for sexual harassment and the other for 

a racially-motivated discharge. Cambridge Tile, 590 F.2d at 205. During 

the investigations, the Commission found evidence of sex discrimination 

in job classifications, and subpoenaed documents relevant to the job 

classifications. Id. at 206. The Court distinguished Bailey by noting that 

the job classification issue was not “wholly unrelated,” and specifically 

held “the possibility the employer was discriminating against women in 

job classifications [was] relevant to the specific charges of sex and race 

discrimination in firing.” Id. As the court observed, “a company’s 

business practices are not so compartmentalized as the defendant in this 

case would contend.” Id. 

Such is the case here: evidence that an employer was giving a 

clothing benefit only to male employees was relevant to the investigation 

of Stephens’s sex discrimination discharge claim, and properly grew out 

of it. Defendant asserts that the dress code is important for its business

and justifies the firing of Stephens. But Defendant also says that its 

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32

refusal until October 2014 to provide women with comparable benefits to 

adhere to the dress code is both irrelevant and not subject to legal 

remedy. This argument conforms to neither the facts nor the law, and 

should be rejected by the Court.

B. The Defendant Continues to Discriminate Against 

Female Employees Through Inferior Clothing 

Allowances.

The relevant law and facts have been set forth in the Commission’s 

Motion for Summary Judgment. Doc. 51 at Pg ID 614-616, and 636-638. 

To summarize, Defendant’s policy of paying for the work clothing of male 

employees, while failing to provide a comparable benefit to female 

employees, violates Title VII. Two significant omissions mar the 

Defendant’s substantive arguments. 

First, Defendant’s brief fails to inform the Court that no benefits 

were provided to female employees prior to October 2014, after this 

litigation commenced. Ex. O, Rost Dep. (Doc. 51-16) 15:16-16:12; Ex. I, 

Kish Dep. (Doc. 51-10) 20:16-21:3; Ex. P, Clothing Allowance Benefits 

Checks (Doc. 51-17). Reading RGGR’s brief, one could be excused for 

coming to the (erroneous) conclusion that stipends have always been 

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33

paid to females. As the evidence set forth in the Commission’s Brief 

indicates, this is not so, and Defendant’s refusal to acknowledge this does 

it no credit.

Second, Defendant’s current stipends for females are still inferior 

to the benefits afforded to men. Defendant does not acknowledge the 

value of the suits and ties provided to men, which are approximately 

$235 per suit/tie and can be repaired or replaced as necessary and 

without cost. Ex. O, Rost Dep. (Doc 51-16) 14:20-15:6.

Women, on the other hand, are given a stipend described by Rost 

himself as “little” and in any event inferior to those afforded to males 

who have contact with the public, “runners” (those who transport bodies) 

included. Ex. O, Rost Dep. (Doc. 51-16) 15:3-18. The sums ($150 for 

full-time women and $75 for part-time women) were determined by

Rost’s notion of what was “fair.” Ex. O, Rost Dep. (Doc. 51-16) 45:12-20. 

Unfortunately, such subjective notions of fairness cannot be dispositive, 

given the Defendant’s history of affording women employees absolutely 

no clothing allowance.

An examination of the amounts paid for men, and the flexibility 

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34

afforded to the male clothing benefit (e.g., new suits available at 

necessary, picked up on company time) demonstrate the continuing 

discrimination against female employees. The Defendant continues to 

violate Title VII and is liable for damages for discrimination on the basis 

of sex. 

IV. CONCLUSION

Thomas Rost has forthrightly and repeatedly stated that his sex 

and gender stereotypes motivated his decision to terminate Stephens’s 

employment. These admissions are dispositive. Moreover, Defendant’s 

sex-differentiated dress code cannot excuse the firing of a transgender 

person who was willing to professionally adhere to it according to her 

identity. Defendant’s concerns about customer reactions have been 

disposed of by settled precedent regarding third party prejudices.

Furthermore, Defendant’s RFRA-burden claim is undercut by the 

absence of evidence supporting its claim that it would have paid for 

Aimee Stephens’s funeral-director clothing. In any event, such expense

would have at most required her to pay for her own clothing, not fire her. 

Additionally, Defendant’s “least restrictive means” requires a cessation 

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35

of Title VII enforcement and no remedy for persons like Stephens, a 

result not contemplated by RFRA nor any precedent.

Finally, Defendant’s arguments regarding the clothing-allowance 

claim are without merit. The claim grew reasonably from the 

Commission’s investigation of Stephens’s sex-discrimination charge, and 

significant evidence supporting the unlawful differential treatment

regarding this privilege of employment supports summary judgment in 

favor of the EEOC on this claim. 

Accordingly, we urge the Court to deny Defendant’s Motion in its 

entirety, and instead grant the Commission’s renewed request for entry 

of summary judgment in its favor.

Respectfully submitted,

EQUAL EMPLOYMENT 

 OPPORTUNITY COMMISSION

s/ Miles Shultz

MILES SHULTZ (P73555)

Trial Attorney

Dated: May 2, 2016 s/ Dale Price

DALE PRICE (P55578)

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36

Trial Attorney

DETROIT FIELD OFFICE

Patrick V. McNamara

477 Michigan Avenue, Room 865

Detroit, Michigan 48226

Dale.Price@EEOC.GOV 

Tel. No. (313) 226-7808

Fax No. (313) 226-6584

Certificate of Service

I hereby certify that on May 2, 2016, I electronically filed the 

forgoing with the clerk of the Court by using the CM/ECF system, which 

will send a notice of electronic filing to all record attorneys.

EQUAL EMPLOYMENT 

 OPPORTUNITY COMMISSION

Dated: May 2, 2016 s/ Dale Price

DALE PRICE (P55578)

Trial Attorney

2:14-cv-13710-SFC-DRG Doc # 63 Filed 05/02/16 Pg 50 of 50 Pg ID 1948