UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Equal Employment 

Opportunity Commission,

Plaintiff,

v.

R.G. & G.R. Harris Funeral

Homes, Inc.,

Defendant.

Civil Action No.

2:14-cv-13710

Hon. Sean F. Cox

DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.’S 

REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT 

James A. Campbell (AZ Bar 026737) 

Douglas G. Wardlow (AZ Bar 032028)

Joseph P. Infranco (NY Bar 1268739)

Bradley S. Abramson (AZ Bar 029470)

ALLIANCE DEFENDING FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

(480) 444-0028 Fax

jcampbell@ADFlegal.org

dwardlow@ADFlegal.org

jinfranco@ADFlegal.org

babramson@ADFlegal.org

Joel J. Kirkpatrick (P62851)

JOEL J. KIRKPATRICK, P.C.

843 Penniman Ave., Suite 201

Plymouth, MI 48170

(734) 404-5710

(866) 241-4152 Fax

joel@joelkirkpatrick.com 

Attorneys for Defendant

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Table of Contents

Introduction ............................................................................................................................ 1

Argument ................................................................................................................................. 1

I. R.G.’s Enforcement of Its Sex-Specific Dress Code Based on Biological 

Sex Does Not Violate Title VII. ............................................................................... 1

A. An Employer May Require an Employee to Comply with a SexSpecific Dress Code Based on the Employee’s Biological Sex.................. 1

B. R.G.’s Sex-Specific Dress Code Does Not Impose Unequal 

Burdens on the Sexes. ..................................................................................... 3

C. The EEOC’s Clothing Allowance Claims Are Irrelevant to Its 

Unlawful Discharge Claim. ............................................................................ 5

D. The Undisputed Evidence Establishes that Female Funeral 

Directors Would Be Issued and Required to Wear Suits 

Comparable to Those Provided to Male Funeral Directors. ..................... 6

E. The EEOC Has Not Cited Any Direct Evidence of Discriminatory 

Intent. ................................................................................................................ 7

F. The EEOC Cannot Establish Pretext. ........................................................... 9

G. R.G.’s Sex-Specific Dress Code Does Not Impermissibly Cater to 

the Discriminatory Preferences of Customers. .......................................... 11

II. RFRA Prohibits the EEOC from Applying Title VII to Force R.G. to 

Violate its Sincerely Held Religious Beliefs. .......................................................... 12

A. Applying Title VII in this Case Would Substantially Burden R.G.’s 

Religious Exercise. ......................................................................................... 12

B. The EEOC Has Not Shown that Applying Title VII in this Case 

Satisfies Strict Scrutiny. ................................................................................. 16

III. R.G. Is Entitled to Summary Judgment on the EEOC’s Clothing 

Allowance Claim. ...................................................................................................... 18

Conclusion ............................................................................................................................. 20

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Table of Authorities

Cases: 

Blizzard v. Marion Technical College, 

698 F.3d 275 (6th Cir. 2012) .................................................................................... 10

Burwell v. Hobby Lobby Stores, Inc., 

134 S. Ct. 2751 (2014) ........................................................................................ 12, 18 

Chavez v. Credit Nation Auto Sales, LLC, 

No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016) ................................ 8, 9 

Chen v. Dow Chemical Co., 

580 F.3d 394 (6th Cir. 2009) .................................................................................... 10

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

508 U.S. 520 (1993) ................................................................................................... 17

Dawson v. H&H Electric, Inc., 

No. 4:14-CV-005583, 2015 WL 5437101 (E.D. Ark. Sept. 15, 2015) .............. 8, 9 

East Texas Baptist University v. Burwell, 

793 F.3d 449 (5th Cir. 2015) .................................................................................... 13

EEOC v. Bailey Co., 

563 F.2d 439 (6th Cir. 1977) .............................................................................. 18, 19 

EEOC v. Cambridge Tile Manufacturing Co., 

590 F.2d 205 (6th Cir. 1979) .................................................................................... 19

EEOC v. Catholic University of America, 

83 F.3d 455 (D.C. Cir. 1996) ................................................................................... 12

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006) ............................................................................................. 16, 17 

Hankins v. New York Annual Conference of United Methodist Church, 

516 F. Supp. 2d 225 (E.D.N.Y. 2007) .................................................................... 12

Hankins v. New York Annual Conference of United Methodist Church, 

351 F. App’x 489 (2d Cir. Oct. 30, 2009) ............................................................... 12

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Holt v. Hobbs, 

135 S. Ct. 853 (2015) .................................................................................... 13, 15, 17 

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 

132 S. Ct. 694 (2012) ................................................................................................ 17

Jespersen v. Harrah’s Operating Co., 

444 F.3d 1104 (9th Cir. 2006) ............................................................................ 3, 4, 5 

Johnson v. Kroger Co., 

319 F.3d 858 (6th Cir. 2003) ...................................................................................... 7 

Nguyen v. City of Cleveland, 

229 F.3d 559 (6th Cir. 2000) ...................................................................................... 8 

Passarge v. Sharefax Credit Union, 

277 F. Supp. 2d 819 (S.D. Ohio 2003) ................................................................... 10

Robinson v. Runyon, 

149 F.3d 507 (6th Cir. 1998) ...................................................................................... 7

Smith v. Chrysler Corp., 

155 F.3d 799 (6th Cir. 1998) ...................................................................................... 7 

Smith v. City of Salem, 

369 F.3d 912 (6th Cir. 2004) .................................................................................. 2, 3

Smith v. City of Salem, 

378 F.3d 566 (6th Cir. 2004) .............................................................................. 1, 2, 3 

Wisconsin v. Yoder, 

406 U.S. 205 (1972) ................................................................................................... 15

Zubik v. Burwell, 

_ S. Ct. _, 2016 WL 2842449 (May 16, 2016) .................................................. 13, 14 

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Introduction

 By insisting that Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”)

allow Charging Party Stephens to violate R.G.’s sex-specific dress code, Plaintiff 

Equal Employment Opportunity Commission (the “EEOC”) seeks to create special 

Title VII protection based on transgender status. But that argument exceeds extant 

Sixth Circuit authority—indeed, even the EEOC’s favorite precedent, Smith v. City of 

Salem, 378 F.3d 566 (6th Cir. 2004), declined to go that far. This Court should follow 

the Sixth Circuit’s lead, conclude that R.G. did not violate Title VII when it 

discharged Stephens for expressing an intent to violate R.G.’s dress code, and grant 

summary judgment to R.G.

Argument

I. R.G.’s Enforcement of Its Sex-Specific Dress Code Based on Biological 

Sex Does Not Violate Title VII. 

A. An Employer May Require an Employee to Comply with a SexSpecific Dress Code Based on the Employee’s Biological Sex.

The EEOC argues that “requiring Stephens to comply [with R.G.’s dress code] 

based on . . . biological gender rather than . . . gender identity is discrimination 

because of sex.” Memorandum in Support of Plaintiff EEOC’s Answer to 

Defendant’s Motion for Summary Judgment (“Pl. Opp. Mem.”) at 12-13. But if the 

EEOC is correct, it would be meaningless to say that the employer’s dress code is sexspecific in the first place. See Defendant’s Memorandum of Law Opposing the 

EEOC’s Motion for Summary Judgment (“Def. Opp. Mem.”) at 14. This is because 

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employees could skirt those dress codes through unverifiable professions of gender 

identity, and employers would be powerless to even question them. 

The EEOC’s attempt to elevate gender identity over sex in the dress-code 

context faces another hurdle: simple logic shows that the EEOC’s position would 

actually cause (not remedy) discrimination based on gender identity. If an employer had 

a sex-specific dress code that permitted men but not women to wear neckties, and if it 

applied that dress code based on gender identity, then a biological woman who 

professes a male gender identity would be allowed to wear a necktie at work, but a 

biological woman who professes a female gender identity would not. The EEOC 

would thus foster rather than prevent discrimination based on gender identity. 

Viewed in this way, it is clear that the EEOC’s argument that a sex-specific 

dress code must be applied based on gender identity is tantamount to arguing that 

transgender employees should receive greater protection under Title VII than nontransgender employees do. Under the EEOC’s theory, a non-transgender employee 

who is discharged for violating a sex-specific dress code would not have a Title VII 

claim. But a similarly situated transgender employee would. 

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

to go this far. The court’s original opinion included a paragraph stating that 

“[d]iscrimination based on transsexualism is rooted in the insistence that sex (organs) 

and gender (social classification of a person as belonging to one sex or the other) 

coincide,” which is “the very essence of sex stereotyping.” Smith v. City of Salem, 369 

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F.3d 912, 921-22 (2004). Thus, the argument continued, “to the extent that Smith . . . 

alleges discrimination based solely on his identification as a transsexual, he has alleged 

a claim of sex stereotyping pursuant to Title VII.” Id. at 922. But two months later, 

the Sixth Circuit issued an amended opinion omitting that paragraph, showing that 

the court was not willing to extend Title VII to cover transsexual status. 378 F.3d 566. 

Because the EEOC’s argument that employers must apply sex-specific dress codes 

based on gender identity essentially claims that transgender status is entitled to special 

protection under Title VII, the Court should adhere to Smith and refuse to extend 

Title VII here.1

B. R.G.’s Sex-Specific Dress Code Does Not Impose Unequal 

Burdens on the Sexes. 

The EEOC argues that R.G.’s dress code imposes unequal burdens on the 

sexes because it is “stricter . . . for females, who are expected to wear skirts.” Pl. Opp. 

Mem. at 3. This argument fails for several reasons. 

First, the unequal-burdens analysis must focus on the dress code for funeral 

directors. See Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1106-07 (9th Cir. 2006) 

(en banc) (focusing only on the dress code for the plaintiff’s position). The burdens

that R.G.’s dress code imposes on male and female funeral directors are identical—

 

1 The EEOC also contends that R.G. “display[s] [its] sex stereotypes about . . . 

Stephens” when it argues that the EEOC’s position will “allow[] an employee to 

switch clothing every day.” Pl. Opp. Mem. at 14. This is false. R.G.’s analogies show 

the necessary implication of the EEOC’s legal arguments, and it is telling that the 

EEOC does not even attempt to deny that its arguments would necessarily permit the 

hypothetical results that R.G. discusses in its briefing. 

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both men and women are required to wear company-issued suits. See T. Rost Dep. 

13:4-14, 47:23-48:11 (Def. SJ Ex. 3); T. Rost Aff. ¶ 54 (Def. SJ Ex. 1). 

Second, even looking beyond the funeral-director position, the dress code’s 

burden on male employees who interact with the public is equivalent to the burden it 

imposes on female employees who interact with the public. It is undisputed that those 

male employees must wear suits and that those female employees must wear skirts or 

dresses. But no evidence in the record suggests, let alone establishes, that wearing a 

skirt or dress burdens a woman more than wearing a suit burdens a man. Accordingly, 

no jury could reasonably conclude that R.G.’s dress code imposes an unequal burden 

on the sexes. 

This is analogous to Jespersen. There, the plaintiff contended that her employer 

violated Title VII because its employee-appearance policy required female but not 

male employees to wear makeup. 444 F.3d at 1109-10. The plaintiff, however, did not 

submit any evidence showing that the makeup requirement for women imposed any 

greater burden in terms of time or cost than did the employer’s grooming 

requirements for men. Id. at 1110. Because the employee “failed to create a record 

establishing that the [employer’s grooming] policies are more burdensome for women 

than for men,” the court upheld summary judgment in favor of the employer. Id. at

1111. In the same way that Jespersen failed to show that wearing makeup was more 

burdensome for women, the EEOC has failed to show that wearing a skirt or dress is 

more burdensome than the dress-code requirements imposed on male employees. 

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Thus, R.G.’s sex-specific dress code is compliant with Title VII.2

C. The EEOC’s Clothing Allowance Claims Are Irrelevant to Its 

Unlawful Discharge Claim. 

 

The EEOC claims that R.G.’s dress code “cannot be read separately from the 

clothing allowance” issue. Pl. Opp. Mem. at 3-4. Here too, the EEOC is incorrect. 

Indeed, the EEOC itself recognizes that Stephens’s discharge, which occurred 

because of R.G.’s dress code, is a separate and distinct claim from the EEOC’s 

clothing allowance claim. Compare Am. Compl. ¶¶ 14-16 (discussing Stephens’s 

discharge), with id. at ¶¶ 17-18 (alleging separate claim regarding clothing allowance). 

Moreover, as Jespersen illustrates, courts analyzing dress codes focus on the 

particular position at issue. See 444 F.3d at 1106-07 (focusing only on the dress code 

for the plaintiff’s position). Here, R.G.’s policy is to provide male and female funeral 

directors with company-issued suits. T. Rost Dep. 13:4-14, 47:23-48:11 (Def. SJ Ex. 3); 

T. Rost Aff. ¶ 54 (Def. SJ Ex. 1). Accordingly, female funeral directors—unlike other 

female employees who interact with the public—do not receive a clothing allowance. 

Therefore, the EEOC’s attempt to import the clothing-allowance issue into the dresscode analysis is misplaced. 

 

2

 In a single sentence, the EEOC suggests that R.G. enforces its dress code 

“generously in favor of male employees” because “some [male employees] have 

goatees.” Pl. Opp. Mem. at 3. That R.G. allows male employees to maintain neatly 

trimmed facial hair merely describes one aspect of R.G.’s grooming standards for men. 

It says nothing about how strictly the female dress code is enforced relative to the 

male dress code. This Court should thus reject as wholly unsupported the EEOC’s 

suggestion that R.G. unequally enforces the dress code. 

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D. The Undisputed Evidence Establishes that Female Funeral 

Directors Would Be Issued and Required to Wear Suits 

Comparable to Those Provided to Male Funeral Directors. 

The EEOC denies that all funeral directors will receive a company-issued suit. 

See Pl. Opp. Mem. at 4-5. But the EEOC’s denial cannot be credited because the 

EEOC fails to cite any facts that undermine the undisputed evidence on this point. See 

T. Rost Aff. ¶ 54 (Def. SJ Ex. 1); T. Rost Dep. 13:4-14, 47:23-48:11 (Def. SJ Ex. 3); 

Kish Dep. 64:12-24 (Def. SJ Ex. 5); McKie Dep. 38:19-23 (Def. SJ Ex. 13). 

First, the EEOC is simply incorrect when it states that Rost’s affidavit 

“contradict[s]” the evidence establishing that female funeral directors will receive and 

be required to wear company-issued suits. Pl. Opp. Mem. at 4 (citing T. Rost. Aff. ¶¶ 

56-57 (Def. SJ Ex. 1)). The cited paragraphs—which discuss the suits that R.G. gives 

to male employees who interact with the public in positions other than funeral directors, T. 

Rost. Aff. ¶¶ 56-57 (Def. SJ Ex. 1)—do not address the dress code for funeral 

directors at all. And the paragraphs of Rost’s affidavit that do in fact address the dress 

code for funeral directors confirm that R.G. “will provide female funeral directors 

with skirt suits in the same manner that it provides pant suits to male funeral 

directors,” and that female funeral directors “will be required to wear those suits while 

on the job.” Id. at ¶ 54. 

Second, the EEOC puts much stock in the fact that R.G. currently “contracts 

for clothing with . . . a men’s clothier.” Pl. Opp. Mem. at 4-5. But that does not mean 

that R.G. would not provide a comparable suit to female funeral directors. It simply 

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means that R.G. would likely have to purchase the suits elsewhere. 

Accordingly, the EEOC has failed to cite any evidence that a reasonable juror 

could rely upon to reject the fact that R.G. would provide female funeral directors 

with female suits comparable to those provided to male funeral directors. 

E. The EEOC Has Not Cited Any Direct Evidence of Discriminatory 

Intent. 

The EEOC argues that portions of Rost’s testimony constitute direct evidence 

of discriminatory intent. See Pl. Opp. Mem. at 6-12. This argument fails, however, 

because Rost’s statements do not allow a factfinder to conclude that discriminatory 

intent existed without drawing additional inferences. 

“[D]irect evidence of discrimination” is evidence that “does not require a 

factfinder to draw any inferences in order to conclude that the challenged employment 

action was motivated at least in part by prejudice against members of the protected 

group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (emphasis added). 

“Such evidence would take the form, for example, of an employer telling an employee, 

‘I fired you because you are disabled.’” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th 

Cir. 1998). “Rarely will there be direct evidence from the lips of the defendant 

proclaiming his or her [discriminatory] animus.” Robinson v. Runyon, 149 F.3d 507, 513 

(6th Cir. 1998). 

R.G. primarily contends that two portions of Rost’s deposition testimony 

constitute direct evidence of discrimination: (1) Rost’s statement that he discharged 

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Stephens because of Stephens’s stated intent to dress in the female uniform in 

violation of R.G.’s sex-specific dress code, T. Rost 30(b)(6) Dep. 135:24-136:3, 

136:24-137:10 (Def. SJ Ex. 4); and (2) Rost’s testimony that he was “uncomfortable” 

with Stephens’s use of the name “Aimee” in the charge of discrimination, T. Rost

Dep. 23:4-8 (Pl. Ex. O). Yet this cited evidence does not show that Rost’s discharge 

of Stephens was motivated by prejudice against men or women. To draw that 

conclusion, a juror would need to make several inferential jumps—for example, that 

the enforcement of R.G.’s dress code was motivated by impermissible stereotypes, or

that Rost’s discomfort with Stephens’s subsequent use of the name Aimee is directly 

tied to Rost’s discharge of Stephens. Rather, the cited deposition testimony is direct 

evidence of only one motivation: Rost’s intent to discharge Stephens because Rost did 

not want one of his employees to violate the dress code by dressing in the work 

uniform for members of the opposite sex. Consequently, the evidence cited by the 

EEOC does not constitute direct evidence of discrimination.3

Two cases that the EEOC cites to support its direct evidence argument—

Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 

14, 2016), and Dawson v. H&H Electric, Inc., No. 4:14-CV-005583, 2015 WL 5437101 

(E.D. Ark. Sept. 15, 2015)—are distinguishable from this case. In Chavez, the court 

 

3

 R.G. has met its burden under Title VII even if this were a “direct evidence case[]” 

because R.G. has proven that it had a reason other than “impermissible discrimination” 

for its employment decision. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 

2000). That reason is R.G.’s decision to enforce its sex-specific dress code. See Def. 

Opp. Mem. at 3-9.

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held that a genuine issue of material fact existed as to whether sex was a motivating 

factor in the discharge of an employee undergoing a male-to-female gender transition. 

2016 WL 158820 at *9. The plaintiff there proceeded under a circumstantial-evidence 

theory, and among other evidence, the plaintiff showed that his employer told him 

that he could not wear a dress while going to and from work. Id. at *6-*8. Here, by 

contrast, it is undisputed that R.G. would not discharge or otherwise discipline 

employees who dress as members of the opposite sex on their own time but comply 

with the dress code while on the job..4 Dawson is distinguishable for similar reasons: 

that case also proceeded under a circumstantial-evidence theory and did not involve 

an employer’s enforcement of a sex-specific dress code. 2015 WL 5437101 at *1-*3. 

Accordingly, neither Dawson nor Chavez supports the EEOC’s contention that Rost’s 

statements constitute direct evidence of impermissible sex stereotyping. 

F. The EEOC Cannot Establish Pretext. 

The EEOC’s pretext arguments are likewise without merit. The EEOC argues 

that “the dress code defense [is] pretextual because Rost did not discuss the code 

when firing Stephens.” Pl. Opp. Mem. at 13. The EEOC further argues that “Rost 

 

4

 The EEOC denies this fact, see Plaintiff’s Counter-Statement of Disputed Facts ¶ 77, 

but the EEOC cites no record evidence that actually contradicts the fact as stated. 

The EEOC cites Rost’s testimony that he did not know what he would do if a 

customer complained about Stephens dressing as a woman on his own time. But that 

testimony does not contradict Rost’s clear testimony that Stephens was discharged for 

refusing to comply with R.G.’s dress code while at work, and that Rost would not 

have discharged Stephens if Stephens had intended to present as a woman only on his 

own time. T. Rost Aff. ¶¶ 50-51 (Def. SJ Ex. 1); T. Rost 30(b)(6) Dep. 137:11-15 (Def. 

SJ Ex. 4). 

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

his deposition.” Pl. Opp. Mem. at 12. But the mere fact that an employer did not 

explain the reason for the discharge at the time it occurred, standing alone, is not 

enough for a reasonable juror to find pretext. See Blizzard v. Marion Tech. Coll., 698 

F.3d 275, 284-85 (6th Cir. 2012) (rejecting plaintiff’s argument that the legitimate 

business reasons for employee’s termination were pretextual simply because they were 

not the same reasons stated by the employer in its termination letter); Passarge v. 

Sharefax Credit Union, 277 F. Supp. 2d 819, 827 (S.D. Ohio 2003) (rejecting employee’s 

argument “that [his employer’s] silence at the time of his termination in response to 

his request for an explanation is evidence of pretext”). 

The EEOC thus has not carried its burden to establish pretext. “Pretext is a 

commonsense inquiry: did the employer fire the employee for the stated reason or not? 

This requires a court to ask whether the plaintiff has produced evidence that casts 

doubt on the employer’s explanation, and, if so, how strong it is.” Chen v. Dow Chem. 

Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). But here, far from casting doubt on R.G.’s 

reliance on the dress code, the EEOC’s own evidence confirms that R.G. discharged 

Stephens because Stephens insisted on violating the dress code by dressing in the 

female uniform. See Pl. Opp. Mem. at 8 (citing T. Rost 30(b)(6) Dep. 135:24-136:1); T. 

Rost 30(b)(6) Dep. 136:24-137:10 (Def. SJ Ex. 4). 

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G. R.G.’s Sex-Specific Dress Code Does Not Impermissibly Cater to 

the Discriminatory Preferences of Customers. 

R.G.’s dress code is intended to ensure that grieving individuals are not 

subjected to distraction or otherwise disturbed as they come mourn lost loved ones. 

The EEOC characterizes this as “[c]atering to customer preference based on sex.” Pl. 

Opp. Mem. at 17. The EEOC’s characterization, however, is inaccurate. Rost’s 

concern about distracting grieving individuals is not limited to his desire to keep 

customers; it is connected to his desire (and his sincere religious calling) to ensure that 

he is effectively ministering to the grieving people that he serves. See T. Rost Aff. ¶¶ 7, 

10, 39 (Def. SJ Ex. 1). Accordingly, the cases that the EEOC cites for the proposition 

that “catering to a customer’s assumed preferences or prejudices is not a defense” are 

beside the point. See Pl. Opp. Mem. at 18-19. The cases are also distinguishable—each 

of them involves employers preferring one sex over the other sex (that is, preferring 

male employees over female employees for a position or vice versa). But nothing of 

the sort is at issue here. 

The EEOC is also incorrect when it asserts that Rost’s concern that Stephens 

would cause distraction when dressing as a woman is speculative. See Pl. Opp. Mem. 

at 20. It is undisputed that Rost knew Stephens for several years, since the time he 

began working as a funeral director at R.G. See T. Rost Aff. ¶ 39 (Def. SJ Ex. 1). Rost 

thus knew what Stephens looked like, and he had a reasonably informed opinion how 

Stephens wearing a female uniform would affect the business and ministry that he 

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owns and has been a part of for five decades. See id. at ¶¶ 2, 39. Rost’s reasonable 

concerns for the wellbeing of grieving families are based on years of experience and 

observation and should not be lightly cast aside. 

II. RFRA Prohibits the EEOC from Applying Title VII to Force R.G. to 

Violate its Sincerely Held Religious Beliefs. 

The EEOC claims that “RFRA has never been interpreted to insulate an 

employer from liability under” an employment-nondiscrimination law. Pl. Opp. Mem. 

at 21-22. This is not true, however, because a number of cases have upheld RFRA 

defenses when raised by religiously motivated employers. See, e.g., EEOC v. Catholic 

Univ. of Am., 83 F.3d 455, 467-70 (D.C. Cir. 1996) (finding that RFRA provides a 

defense to a sex-discrimination claim); Hankins v. N.Y. Annual Conference of United 

Methodist Church, 516 F. Supp. 2d 225, 237-38 (E.D.N.Y. 2007) (finding that RFRA 

provides a defense to an age-discrimination claim), aff’d on other grounds 351 F. App’x 

489 (2d Cir. Oct. 30, 2009). Although those cases involved religious nonprofit 

organizations, the Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 

(2014), made it clear that RFRA also protects religiously motivated owners of closely 

held for-profit corporations like R.G. See id. at 2775 (holding that a “restriction on the 

activities of a for-profit closely held corporation must comply with RFRA”). Thus, 

ample precedent supports RFRA’s application in this case.

A. Applying Title VII in this Case Would Substantially Burden R.G.’s 

Religious Exercise.

As with its prior summary-judgment briefing, the EEOC mischaracterizes 

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R.G.’s substantial-burden arguments. Most notably, the EEOC implies that the 

burden on R.G.’s religious exercise is merely paying for a female suit worn by a 

biological male. Pl. Opp. Mem. at 23-24. While this faith-violating expenditure is 

surely part of the burden on R.G.’s religious exercise, see T. Rost Aff. ¶¶ 46-47 (Def. 

SJ Ex. 1), it does not encompass the whole of the burden. The evidence unequivocally 

shows that Rost believes that he “would be violating God’s commands” not only by 

paying for, id. at ¶ 46, but also by “permit[ting],” id. at ¶ 45, “one of [R.G.’s] male 

funeral directors to wear the uniform for female funeral directors while at work,” id.

Forcing Rost to violate his faith in this way imposes a substantial burden on his 

religious exercise. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (noting that a 

substantial burden exists when a person is required “to engage in conduct that 

seriously violates [his] religious beliefs”).

The EEOC fails in its passing attempt to refute the substantial burden that 

occurs when the government compels R.G. to permit one of its representatives to 

dress in the uniform for members of the opposite sex. The EEOC asserts that R.G. 

was not “asked to facilitate Stephens’s behavior” or “to perform any actions which 

[Rost] finds religiously offensive.” Pl. Opp. Mem. at 26. This argument ignores that 

Stephens’s proposal to dress in the female uniform involved conduct as a representative 

of R.G. and thus directly implicated R.G. and its religious exercise. That fact 

distinguishes this case from East Texas Baptist University v. Burwell, 793 F.3d 449, 459 

(5th Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell, __ S. Ct. __, 2016 WL 

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2842449 (May 16, 2016),5 where what the employees proposed to do—use certain 

forms of contraception—occurred on their own time rather than when they were 

representing their employer. In contrast, Stephens would have made R.G. and Rost 

complicit in promoting “the idea that sex is a changeable social construct rather than 

an immutable God-given gift” in violation of Rost’s religious convictions. T. Rost Aff. 

¶¶ 42-45 (Def. SJ Ex. 1). Compelling R.G. to do that would impose a substantial 

burden on its religious exercise.

The EEOC also attempts to refute the substantial burden that occurs when the 

government forces R.G. to pay for a female suit for a male funeral director. The 

EEOC begins by arguing that it is “speculative and unsupported” that R.G. would 

have purchased a female suit for a female funeral director. Pl. Opp. Mem. at 24. But 

as previously discussed, the EEOC has not cited anything in the record to contradict 

the undisputed evidence on this point. See supra at 6-7. 

The EEOC then claims that R.G. would not have needed to provide female 

suits to Stephens because Stephens “did not ask [R.G.] to provide clothing.” Pl. Opp. 

Mem. at 24; see also id. at 25 (stating without citation to evidence that Stephens “would 

be willing to provide [Stephens’s] own clothing”). The EEOC, however, cannot 

reconcile (1) this newfound argument that R.G. need not provide clothes to Stephens 

and (2) its clothing allowance claim that R.G. must provide equal clothing provisions 

 

5 The EEOC’s reliance on this case is suspect now that the Supreme Court has 

vacated the Fifth Circuit’s opinion.

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to male and female employees. When, as here, the EEOC already argues that R.G. 

violates Title VII by allegedly purchasing clothing for male funeral directors but not 

for comparable female employees, the EEOC cannot simultaneously seek to bolster 

its Title VII discharge claim by contending that R.G. need not provide female clothing 

for Stephens. 

The EEOC additionally argues that R.G.’s purchasing of female attire for 

Stephens cannot constitute a substantial burden because the “cost” of buying female 

suits for Stephens would have been a few hundred dollars or less. Pl. Opp. Mem. at 

24. This argument fails for two reasons, one legal and one factual. First, a significant 

financial expenditure is not a prerequisite to a substantial burden on religious exercise. 

The Supreme Court recently confirmed this when it held, in a case where a religious 

inmate was not required to spend any money, that a substantial burden on religious 

exercise exists whenever the government requires a person of faith “to engage in 

conduct that seriously violates [his] religious beliefs.” Holt, 135 S. Ct. at 862; see also

Wisconsin v. Yoder, 406 U.S. 205, 218, 221 (1972) (holding that the application to Amish 

students of a law requiring school attendance until age 16 on penalty of a five-dollar 

fine constituted a “grave interference with important Amish religious tenets” and 

“unduly burden[ed] the free exercise of religion”). Second, R.G. has never discussed 

cost as the basis of the substantial burden imposed on its religious exercise. Rather, 

regardless of the sum, it is the very act of paying for the clothing—and thus being 

complicit in something that violates Rost’s religious convictions—that contravenes 

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Rost’s beliefs. See T. Rost Aff. ¶ 46 (Def. SJ Ex. 1). R.G. has thus established a 

substantial burden on its religious exercise. 

B. The EEOC Has Not Shown that Applying Title VII in this Case 

Satisfies Strict Scrutiny. 

The EEOC has not engaged in the particularized analysis that, as R.G. has 

already shown, RFRA’s strict-scrutiny standard requires. See Memorandum of Law in 

Support of Defendant’s Motion for Summary Judgment (“Def. SJ Mem.”) at 19-20; 

Def. Opp. Mem. at 20-22. Thus, the EEOC’s generalized claim that “eliminating 

workplace sex discrimination is a compelling governmental interest,” Pl. Opp. Mem. 

at 22 (capitalization omitted),6

 does not even begin to show that forcing Rost to allow 

a male funeral director to dress in the female uniform is the least restrictive means of 

furthering a compelling government interest. 

The EEOC implies that the elimination of workplace discrimination in general 

is such a compelling governmental interest that it admits of no exceptions. Not only 

has the Supreme Court rejected that categorical approach to RFRA analysis in 

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006) 

(rejecting the government’s argument that the challenged law “serves a compelling 

purpose and simply admits of no exceptions”), the Court has regularly concluded that 

protecting religious liberty justifies exceptions to important governmental interests 

 

6 The EEOC curiously asserts that R.G. “acknowledges” that “Congress’s mandate to 

eliminate workplace discrimination is a compelling governmental interest.” Pl. Opp. 

Mem. at 22. In truth, however, R.G. has steadfastly maintained that “the EEOC 

cannot demonstrate a compelling interest here.” Def. SJ Mem. at 19.

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like enforcing nondiscrimination laws, see Hosanna-Tabor Evangelical Lutheran Church & 

Sch. v. EEOC, 132 S. Ct. 694, 710 (2012), ensuring prison safety and security, see Holt, 

135 S. Ct. at 863-67, enforcing federal drug laws, see Gonzales, 546 U.S. at 433, and 

protecting public health, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 

U.S. 520, 544-45 (1993). This is one of those cases where regardless of the strength of 

the general governmental interest underlying Title VII, the government cannot satisfy 

strict scrutiny because the government has no compelling interest in forcing R.G. to 

violate its religious beliefs (as well as its sex-specific dress code) and allow its male 

funeral directors to wear the female uniform. 

 Nor can the EEOC satisfy the least-restrictive-means requirement of RFRA’s 

strict-scrutiny analysis. The EEOC rejects R.G.’s proffered alternatives, see Def. SJ 

Mem. at 20-21, because although those options would allow the government to 

pursue its asserted interests in most situations, it would not permit Stephens to violate 

R.G.’s dress code. Pl. Opp. Mem. at 27-28. But a proposed less-restrictive alternative 

is not disqualified as an option simply because it prevents the government from 

advancing its interest in the particular situation before the Court. Indeed, by its very nature, 

a less-restrictive alternative protects the rights of religiously burdened litigants by 

forbidding the government from applying the law against them under the 

circumstances at issue. 

Moreover, the government could employ other alternatives to ensure that 

Stephens retains employment or the benefits of employment. For example, the federal 

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government could directly hire Stephens and allow Stephens to dress however 

Stephens wants; the government could pay Stephens a full salary and benefits from 

the time of Stephens’s discharge until Stephens acquires comparable employment; or 

the government could provide incentives for other employers (including, but not 

limited to, employers in the funeral industry) to hire Stephens and allow Stephens to 

dress as a member of the opposite sex on the job. See Hobby Lobby, 134 S. Ct. at 2780 

(“[F]or the Government to assume the cost of providing the four contraceptives at 

issue to any women who were unable to obtain them . . . due to their employers’

religious objections[] . . . would certainly be less restrictive of the plaintiffs’ religious 

liberty”). With all of these alternatives available to the government, the EEOC cannot 

meet RFRA’s least-restrictive means requirement and thus cannot satisfy strict 

scrutiny. 

III. R.G. Is Entitled to Summary Judgment on the EEOC’s Clothing 

Allowance Claim. 

As R.G. previously explained, the EEOC lacks authority to raise its clothing 

allowance claim. Def. SJ Mem. at 21-24. The EEOC tries to distinguish EEOC v. 

Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977), because in that case the EEOC “filed suit 

on a claim of [a different kind of] discrimination against a . . . person” other than the 

charging party. Pl. Opp. Mem. at 30. But the same is true here. The clothing allowance 

claim alleges discrimination against a class of persons that does not include Stephens. 

Stephens is a biological male who is not within the class of female employees on 

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whose behalf the EEOC raises the clothing allowance claim. The EEOC confirms 

this by asserting that Stephens “would be willing to provide [Stephens’s] own clothing” 

and thus is not seeking a clothing allowance. Pl. Opp. Mem. at 25. 

When discussing this issue of standing, the EEOC encourages the Court to 

look beyond the analysis outlined in Bailey Co., see Def. SJ Mem. at 21-23, and glean 

guidance instead from EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205 (6th Cir. 

1979). Pl. Opp. Mem. at 31. Yet this argument ignores that Bailey Co. analyzed the 

question at issue here—whether the EEOC lacks standing to raise a claim outside 

what an aggrieved party alleged in his charge of discrimination, 563 F.2d at 446—

whereas Cambridge Tile “involve[d] the scope of the investigatory and subpoena power 

of the EEOC,” 590 F.2d at 205. Because R.G. does not object to the EEOC’s use of 

its subpoena power, Cambridge Tile is inapposite. 

The EEOC’s clothing allowance claim also fails on its merits for the reasons 

that R.G. has already explained. See Def. SJ Mem. at 24-25; Def. Opp. Mem. at 23-24. 

The EEOC disagrees, arguing that “[a]n examination of . . . the flexibility afforded to 

the male clothing benefit . . . demonstrate[s] . . . discrimination against female 

employees.” Pl. Opp. Mem. at 33-34. On the contrary, however, the flexibility of 

paying a clothing allowance to female employees (and thus allowing them to select the 

code-complying clothing of their choice) greatly exceeds the supposed flexibility of 

requiring male employees to wear company-issued suits. This increased flexibility for 

women further illustrates the equity between the clothing benefits afforded to men 

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and those afforded to women. 

Conclusion

 For the foregoing reasons, R.G. respectfully requests that the Court grant its 

motion for summary judgment. 

Dated: May 19, 2016 

Respectfully submitted, 

 /s/ Douglas G. Wardlow 

Douglas G. Wardlow

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CERTIFICATE OF SERVICE

I hereby certify that on May 19, 2016, I electronically filed the foregoing Reply 

Memorandum of Law in Support of Defendant’s Motion for Summary Judgment with 

the Clerk of the Court using the ECF system, which will send notification of this 

filing to all parties in the case. 

 /s/ Douglas G. Wardlow 

Douglas G. Wardlow

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