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 

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF EQUAL 

OPPORTUNITY EMPLOYMENT COMMISSION’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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Statement of the Issues Presented

1. Whether testimony indicating that Defendant R.G. & G.R. Funeral 

Homes, Inc. (“R.G.”) discharged Charging Party Stephens because Stephens intended 

to violate R.G’s sex-specific dress code constitutes direct evidence of discrimination 

based on sex in violation of Title VII, when the undisputed evidence establishes that 

R.G.’s dress code imposes equal burdens on the sexes.

2. Whether the Religious Freedom Restoration Act (“RFRA”) prohibits the 

Court from applying Title VII to Plaintiff Equal Opportunity Employment 

Commission’s (“EEOC”) claims on behalf of Stephens, when the undisputed 

evidence shows that this application of Title VII would compel R.G. (a closely held 

corporation) to violate its owner’s sincerely held religious beliefs, and when the 

EEOC cannot demonstrate that applying Title VII under these circumstances is the 

least restrictive means of furthering a compelling government interest.

3. Whether the EEOC is entitled to summary judgment on its Title VII 

claim challenging R.G.’s manner of providing work clothes and clothing allowances to 

its employees, when the EEOC lacks authority to bring that claim, and when the 

undisputed evidence demonstrates that R.G. provides equivalent clothing benefits to 

comparable male and female employees.

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Authority for the Relief Sought

Issue No. 1

Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977)

Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc)

Issue No. 2

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, et seq.

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

Issue No. 3

EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977)

 

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Table of Contents

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

Argument................................................................................................................................. 2

I. RG’s Enforcement of Its Sex-Specific Dress Code Does Not Constitute 

Impermissible Sex Stereotyping under Title VII..................................................... 2

A. The EEOC’s Argument Is Fatally Flawed Because It Fails to 

Account for R.G.’s Sex-Specific Dress Code. ............................................. 3

B. Accepting the EEOC’s Argument Would Invalidate All SexSpecific Dress Codes under Title VII......................................................... 10

C. Stephens’s Purported Intent to Abide by R.G.’s Dress Code for 

Female Employees Is Not Relevant............................................................ 13

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

Violate its Sincerely Held Religious Beliefs. .......................................................... 16

A. Contrary to the EEOC’s Contentions, Applying Title VII in this 

Case Would Substantially Burden R.G.’s Religious Exercise................... 16

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

Satisfies Strict Scrutiny.................................................................................. 20

III. The EEOC Is Not Entitled to Summary Judgment on Its ClothingAllowance Claim. ...................................................................................................... 22

Conclusion............................................................................................................................. 24

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Table of Authorities

Cases:

Barker v. Taft Broadcasting Co., 

549 F.2d 400 (6th Cir. 1977).................................................................................. 3, 8

Burwell v. Hobby Lobby Stores, Inc., 

134 S. Ct. 2751 (2014) ..................................................................... 17, 18, 20, 21, 22

Carroll v. Talman Federal Savings and Loan Association of Chicago,

604 F.2d 1028 (7th Cir. 1979)..........................................................................8, 9, 12

Christiansburg Garment Co. v. EEOC, 

434 U.S. 412 (1978)................................................................................................... 23

EEOC v. Bailey Co., 

563 F.2d 439 (6th Cir. 1977).................................................................................... 23

EEOC v. Preferred Management Corporation, 

216 F. Supp. 2d 763 (S.D. Ind. 2002)..................................................................... 20

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 

100 F. Supp. 3d 594 (E.D. Mich. 2015) ........................................................... 15, 16

Fagan v. National Cash Register Co., 

481 F.2d 1115 (D.C. Cir. 1973)........................................................................... 3, 12

Frank v. United Airlines, Inc.,

216 F.3d 845 (9th Cir. 2000)...................................................................................... 7

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006)................................................................................................... 20

Harper v. Blockbuster Entertainment Corporation,

139 F.3d 1385 (11th Cir. 1998).................................................................................. 7

Holt v. Hobbs, 

135 S. Ct. 853 (2015) ................................................................................................ 19

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 

515 U.S. 557 (1995)................................................................................................... 20

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Jespersen v. Harrah’s Operating Co., 

444 F.3d 1104 (9th Cir. 2006)..........................................................................7, 8, 16

Los Angeles Department of Water and Power v. Manhart, 

435 U.S. 702 (1978)................................................................................................... 13

Price Waterhouse v. Hopkins, 

490 U.S. 228 (1989)................................................................................................. 7, 8

Smith v. City of Salem, 

378 F.3d 566 (6th Cir. 2004).................................................................................... 11

Tavora v. New York Mercantile Exchange,

101 F.3d 907 (2nd Cir. 1996)..................................................................................... 7

Willingham v. Macon Telegraph Publishing Co., 

507 F.2d 1084 (5th Cir. 1975).................................................................................. 13

Other Authorities:

EEOC Compliance Manual (June 2006)............................................................................. 5

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Introduction

Plaintiff Equal Opportunity Employment Commission (“EEOC”) argues that 

Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”) violated Title VII’s ban 

on sex discrimination when it discharged Charging Party Stephens for refusing to 

comply with its sex-specific dress code. In essence, the EEOC asks this Court to hold 

that R.G.’s sex-specific dress code constitutes unlawful sex stereotyping for the sole 

reason that it is sex-specific—a holding that would expand Title VII to invalidate all 

such dress codes. No court has ever gone so far. On the contrary, giving due 

consideration to an employer’s right to manage the public face of its business, courts 

have long held that sex-specific dress codes are permissible under Title VII when they 

do not unequally burden one sex. Because there is no dispute that R.G.’s dress code 

does not unequally burden one sex, it is R.G. (not the EEOC) that is entitled to 

summary judgment on the EEOC’s unlawful discharge claim. 

The EEOC also contends that the Religious Freedom Restoration Act 

(“RFRA”) does not protect R.G.’s and its owner Tom Rost’s exercise of religion. But 

the undisputed facts show that R.G.’s exercise of religion is substantially burdened by 

forcing it to purchase female work attire for a male employee and by requiring it to 

permit its male funeral directors to wear the female uniform. Because the EEOC 

cannot show that imposing these burdens is the least restrictive means of furthering a 

compelling interest, RFRA bars the application of Title VII in this case.

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Finally, the EEOC claims that R.G.’s clothing allowance treats men more 

favorably than women. But the EEOC lacks standing to bring that claim, and the 

undisputed facts show that male and female employees receive equivalent benefits. As 

a result, it is R.G. (not the EEOC) that is entitled to summary judgment on the 

clothing allowance claim.

Argument

I. RG’s Enforcement of Its Sex-Specific Dress Code Does Not Constitute 

Impermissible Sex Stereotyping under Title VII.

The EEOC’s argument in this case is deceivingly simple: it contends that R.G.’s 

“admission” that it discharged Stephens because Stephens stated an intent to wear 

female attire at work constitutes direct evidence of sexual stereotyping. See EEOC 

Mem. at 26-29. The EEOC, however, is categorically wrong. Its argument skims 

across a critical, decisive, and undisputed fact: that when Stephens, a biological man, 

stated an intent to wear the female uniform at work, Stephens announced an intent to violate 

R.G.’s sex-specific dress code. T. Rost 30(b)(6) Dep. 136:22-137:15 (Def. SJ Ex. 4).1 This 

sex-specific dress code makes all the difference in the world. To the best of R.G.’s 

knowledge, no state or federal court has ever held that an employer whose dress code 

is sex-specific violates Title VII simply because men are expected to wear different 

clothing than women. By shrouding its argument in concepts like gender identity and 

 

1 Defendant’s Summary Judgment Exhibits 1 through 34 are attached to Defendant’s Memorandum 

of Law in Support of R.G.’s Motion for Summary Judgment. Defendant’s Summary Judgment 

Exhibits 35 through 40 are attached to Defendant’s Memorandum of Law in Opposition to the 

EEOC’s Motion for Summary Judgment.

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transgender status, the EEOC attempts to mask the enormity of what it wants this 

Court to do—to hold that sex-specific dress codes constitute illegal sex stereotyping 

in all cases, even when the burdens they impose on the sexes are entirely equal. That 

would depart from the longstanding precedent of the Sixth Circuit and every other 

circuit in the country. 

A. The EEOC’s Argument Is Fatally Flawed Because It Fails to 

Account for R.G.’s Sex-Specific Dress Code.

As explained in R.G.’s memorandum in support of its motion for summary 

judgment, see Memorandum of Law in Support of R.G. & G.R. Harris Funeral Homes, 

Inc.’s Motion for Summary Judgment (“Def. SJ Mem.”) at 5-7, it has long been held 

that sex-specific dress codes and grooming policies that impose equal burdens on men 

and women do not violate Title VII. See, e.g., Barker v. Taft Broad. Co., 549 F.2d 400, 

401 (6th Cir. 1977) (holding that a sex-specific employee-appearance standard that did 

not impose an unequal burden on one sex did not violate Title VII); Fagan v. Nat’l 

Cash Register Co., 481 F.2d 1115, 1117 n.3 (D.C. Cir. 1973) (explaining that when 

employers adopt policies that take account of “common differences in customary 

dress of male and female employees, it is not usually thought that there is unlawful 

discrimination ‘because of sex’’’). The undisputed facts in this case demonstrate that 

R.G.’s dress code does not impose an unequal burden on one sex. See Def. SJ Mem. at 

7-9. Accordingly, R.G.—not the EEOC—is entitled to summary judgment on the 

EEOC’s unlawful discharge claim. 

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At first glance, the arguments of the EEOC and R.G. appear to be like ships 

passing in the night heading for opposite shores. To understand why the EEOC’s 

argument must be rejected in favor of R.G.’s, it is important to understand the point 

at which the two arguments necessarily come to grips—namely, R.G.’s sex-specific 

dress code.

The EEOC attempts to avoid the central importance of R.G.’s dress code by 

stating that the EEOC “is not asserting that R.G.[]’s dress code violates Title VII—

rather the violation is R.G.[]’s insistence that Stephens dress in accord with . . . gender 

stereotypes.” Memorandum in Support of Plaintiff EEOC’s Motion for Summary 

Judgment (“Pl. Mem.”) at 30. That argument is nothing more than an attempt to 

avoid addressing the real issue in this case. Two considerations show that to be true.

First, while the EEOC avoids a direct challenge to R.G.’s sex-specific dress 

code, there is no dispute that R.G. discharged Stephens because of Stephens’s stated 

intention to violate the dress code at work. This fact is established by Rost’s 

uncontested testimony on behalf of R.G.: 

Q. Is . . . the reason you fired him . . . because he claimed that he was 

really a woman; or was it because . . . he would no longer dress as 

a man?

A.· · That he would no longer dress as a man.

Q.· · And why was that a problem?

A.· · Well, because we -- we have a dress code that is very specific that 

men will dress as men; in appropriate manner, in a suit and tie that 

we provide and that women will conform to their dress code that 

we specify.

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T. Rost 30(b)(6) Dep. 136:22-137:10 (Def. SJ Ex. 4); see also id. at 137:11-15 (Def. SJ 

Ex. 4) (testifying that R.G. would not have terminated Stephens if Stephens had stated 

an intention to present as a woman only outside of work); T. Rost Aff. ¶ 50 (Def. SJ 

Ex. 1) (“It was Stephens’s refusal to wear the prescribed uniform and intent to violate 

the dress code while at work that was the decisive consideration in my employment 

decision”). Accordingly, if the enforcement of R.G.’s dress code is permissible under 

Title VII, then R.G. is entitled to summary judgment on the EEOC’s unlawful 

discharge claim. 

Second, by claiming that R.G.’s sex-specific dress code “insist[s]” that 

employees “dress in accord with . . . gender stereotypes,” the EEOC merely states a 

truism. Pl. Mem. at 30. Of course R.G.’s sex-specific dress code insists that employees 

dress sex specifically. That is the entire point. The EEOC’s own policies recognize 

that it does not consider unlawful the sort of benign sex stereotyping inherent 

whenever an employer adopts a sex-specific dress code that requires men to wear 

clothing customary for men and women to wear clothing customary for women. For 

example, in its Compliance Manual, the EEOC acknowledges: 

[A] dress code may require male employees to wear neckties at all times 

and female employees to wear skirts or dresses at all times. So long as 

these requirements are suitable and are equally enforced and so long as 

the requirements are equivalent for men and women with respect to the 

standard or burden that they impose, there is no violation of Title VII.

EEOC Compliance Manual § 619.4(d) (June 2006).

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In this case too, the EEOC tacitly admits that not all sex stereotyping with 

respect to employee dress violates Title VII. Indeed, the EEOC’s claims are 

unintelligible unless one relies upon sex stereotypes. The EEOC contends that R.G. 

violated Title VII because R.G. refused to permit Stephens to dress consistently with 

Stephens’s claimed gender identity while at work. See Pl. Mem. at 31. In other words, 

the EEOC claims that R.G. should have permitted Stephens to dress as a woman. But 

the only way to discern what it means to dress as a woman is by relying on 

preconceived notions about how women typically dress. The EEOC’s argument thus 

boils down to this: R.G. engaged in impermissible sex stereotyping with respect to 

employee dress because R.G. refused to permit Stephens to insist upon sex 

stereotypes concerning women’s dress. The EEOC’s own argument thus posits that in 

some situations, sex stereotypes are acceptable. 

What is more, Stephens agrees that certain instances of sex stereotyping should 

be permissible. When asked at deposition whether R.G. should “be required . . . to 

allow a male funeral director who was . . . bald and [who had] a neatly trimmed beard 

and mustache, to wear a professional[] female dress and high heels while meeting with 

a bereaved family or officiating at a funeral,” Stephens responded: “If that’s the way he

was going to present himself, no.” Stephens Dep. 126:7-19 (emphasis added) (Def. SJ 

Ex. 35). Stephens thus testified that R.G. should not be forced to allow a biological 

man who is clearly male to wear stereotypically female clothes. When asked why not, 

Stephens explained that the hypothetical funeral director’s appearance would not 

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“typically . . . meet the expectations of a female,” thus openly acknowledging that R.G. 

should be allowed to insist on certain sex stereotypes related to employee dress. Id. at 

126:21-22. Therefore, even Stephens understands that not all sex stereotyping 

constitutes a societal evil that should be eradicated with the heavy hand of the law.

Courts have also refused to denounce the harmless sex-based generalizations 

that underlie all sex-specific appearance policies. Indeed, even after Price Waterhouse v. 

Hopkins, 490 U.S. 228 (1989), courts have permitted employers to distinguish between 

the sexes in their dress and grooming policies. See, e.g., Jespersen v. Harrah’s Operating Co., 

444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (holding that a sex-specific dress code 

that required female employees to wear makeup and nail polish did not constitute 

unlawful sex stereotyping); Frank v. United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 

2000) (“An appearance standard that imposes different but essentially equal burdens 

on men and women is not disparate treatment”); Harper v. Blockbuster Entm’t Corp., 139 

F.3d 1385, 1387 (11th Cir. 1998) (holding that an employee-appearance policy 

prohibiting men, but not women, from wearing long hair does not violate Title VII); 

Tavora v. N.Y. Mercantile Exch., 101 F.3d 907 (2nd Cir. 1996) (upholding a sex-specific 

grooming policy).

At bottom, then, the central question in this case is not whether R.G.’s dress 

code relies on customary distinctions between male and female dress. All sex-specific 

employee-appearance policies do that. Rather, the critical question is whether R.G.’s 

sex-specific dress code engages in sex stereotyping of a type that is impermissible under 

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Title VII. Thus to prevail on its motion for summary judgment, the EEOC must 

explain why R.G.’s sex-specific dress code is different from other sex-specific dress 

and grooming policies that have been upheld after Price Waterhouse and that the EEOC 

recognizes are appropriate in its Compliance Manual. But the EEOC does not even 

attempt to do this. 

Nor could it, for there is no meaningful distinction between R.G.’s sex-specific 

dress code and those other sex-specific policies. That is because R.G.’s dress code, 

like those other policies, does not impose an unequal burden on one sex. See Def. SJ 

Mem. at 7-9. And that consideration—whether a dress code imposes an unequal 

burden on one of the sexes—is what matters when determining whether a sex-specific 

dress code violates Title VII. See Jespersen, 444 F.3d at 1110 (“The material issue under 

our settled law is not whether the policies [for men and women] are different, but 

whether the policy imposed on the plaintiff creates an ‘unequal burden’ for the 

plaintiff’s gender”); Barker, 549 F.2d at 401 (holding that a plaintiff who failed to 

allege that his employer’s grooming policy imposed an unequal burden on one sex did 

not state a claim under Title VII); EEOC Compliance Manual § 619.4(d) (“[S]o long 

as the [dress code] requirements are equivalent for men and women with respect to 

the standard or burden that they impose, there is no violation of Title VII.”). 

For example, in Carroll v. Talman Federal Savings and Loan Association of Chicago, 

the Seventh Circuit considered whether Talman Federal’s dress policy, which required 

female employees to wear a “clearly identifiable uniform” but allowed male employees 

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to wear a “variety of normal business attire,” violated Title VII’s prohibition on sex

discrimination. 604 F.2d 1028, 1032-33 (7th Cir. 1979). The court observed that “[s]o 

long as [employee appearance regulations] find some justification in commonly 

accepted social norms and are reasonable related to the employer’s business needs, 

such regulations are not necessarily violations of Title VII even though the standards 

prescribed differ somewhat for men and women.” Id. at 1032. The court, however, 

concluded that Talman Federal’s dress policy discriminated “based on offensive [sex] 

stereotypes” and was “demeaning to women” because of the “natural tendency to 

assume that the uniformed women have a lesser professional status than their male 

colleagues attired in normal business clothes.” Id. at 1033. In other words, Talman 

Federal’s dress policy discriminated based on sex in violation of Title VII because it 

imposed an unequal burden on female employees: the burden of wearing a 

professionally demeaning uniform.

Here, however, R.G.’s dress code for funeral directors like Stephens does not 

impose an unequal burden on the sexes because R.G. provides professional suits for 

all funeral directors, whether male or female. See Def. SJ Mem. at 7-9. Thus, 

discharging Stephens because of Stephens’s intent to violate the dress code does not 

violate Title VII.

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B. Accepting the EEOC’s Argument Would Invalidate All SexSpecific Dress Codes under Title VII.

As discussed above, courts use “equal burdens” analysis to separate unlawful

sex-specific dress codes from lawful ones. The EEOC, however, asks this Court to 

hold that R.G. engaged in impermissible sex stereotyping when it discharged Stephens 

simply because R.G.’s dress code—the reason for Stephens’s discharge—requires that 

employees “conform to [RG’s] expectations of how someone assigned the male [or 

female] sex at birth” should dress at work. Pl. Mem. at 28. The EEOC thus would 

have this Court ignore equal-burdens analysis and hold that R.G.’s sex-specific dress 

code violates Title VII for the sole reason that it requires employees to dress sex specifically. But 

this would amount to holding that all sex-specific dress codes are unlawful under Title 

VII. Nothing warrants such a significant departure from precedent, congressional 

intent, and common sense. 

No state or federal court of which R.G. is aware has ever held that a sexspecific employee-appearance policy constitutes unlawful sex stereotyping simply 

because it distinguishes between the sexes. Nor has any state or federal court of which 

R.G. is aware ever held that an employer engages in sex stereotyping in violation of 

Title VII simply by requiring its male employees to comply with dress-code

requirements for male employees and its female employees to comply with dress-code 

requirements for female employees. 

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The EEOC relies on Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), a case 

involving a biological male firefighter who presented as a female, arguing that there 

the Sixth Circuit held 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 nonconforming behavior.’” Pl. Mem. at 27 (quoting Smith, 378 F.3d at 575). But the 

EEOC ignores a critical difference between the facts in Smith and those in this case: 

Smith did not involve a sex-specific dress code.2 The plaintiff in Smith alleged that his 

employer singled him out for adverse treatment because he “express[ed] less 

masculine, and more feminine mannerisms and appearance.” 378 F.3d at 572. Here, 

however, R.G. did not target Stephens for disparate treatment, but rather evenly 

applied its sex-specific dress code. See Def. SJ Mem. at 10-11. Consequently, Smith 

provides no guidance on the decisive dress-code question at issue in this case.

Many important considerations have led courts to uphold sex-specific dress 

codes against Title VII challenges, and they counsel against invalidating sex-specific 

dress codes in the manner urged by the EEOC in this case. First, an employer must 

be able to control the manner in which it presents its business to the public through 

its employees. When holding that a company’s sex-specific grooming policy did not 

constitute unlawful sex discrimination, the D.C. Circuit concisely explained the 

significance of a business’s right to control its public image:

 

2

Indeed, the EEOC fails to cite a single case where an employer’s dress or grooming regulations 

were at issue.

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Perhaps no facet of business life is more important than a company’s 

place in public estimation. That the image created by its employees 

dealing with the public when on company assignment affects its relations 

is so well known that we may take judicial notice of an employer’s 

proper desire to achieve favorable acceptance.

Fagan, 481 F.2d at 1124-25. Accepting the EEOC’s position would severely hinder the 

ability of businesses to control their public image. It would, for example, force an 

employer to allow a biological male employee who is bearded and balding to wear 

high heels and a dress to work. But even Stephens testified that this would be 

unacceptable in the funeral industry. Stephens Dep. 126:7-19 (emphasis added) (Def. 

SJ Ex. 35). 

Second, sex-specific dress and grooming policies not only enable businesses to 

control their public image, they also advance legitimate—and even vital—business 

purposes. See Carroll, 604 F.2d at 1032 (observing that employee-dress policies are 

often “related to the employer’s business needs”). That is certainly the case here. 

R.G.’s dress code advances its critical interest in creating an environment free from 

distractions and conducive to the healing process of grieving family members and 

friends. See T. Rost Aff. ¶ 34 (Def. SJ Ex. 1) (“Maintaining a professional dress code 

that is not distracting to grieving families is an essential industry requirement that 

furthers their healing process.”). R.G. thus does not allow funeral directors to wear 

the uniform for members of the opposite sex because that would attract undue 

attention to those funeral directors and disrupt the grieving process for clients. Id. at ¶ 

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37 (Ex. 1). Title VII does not require businesses to eliminate dress codes that advance 

such legitimate business purposes.

Third, nothing suggests that Congress intended Title VII to override all sexspecific dress codes, as the EEOC’s argument would do. When enacting Title VII’s 

sex-discrimination prohibition, “Congress sought only to give all persons equal access 

to the job market, not to limit an employer’s right to exercise his informed judgment 

as to how best to run his shop.” Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092 

(5th Cir. 1975). Thus, using Title VII to invalidate a sex-specific dress code that 

imposes equal burdens on the sexes would stretch the statute far beyond “the intent 

of Congress to . . . guarantee . . . equal job opportunity for males and females.” Id. at

1091; see also Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 

(1978) (“In forbidding employers to discriminate against individuals because of their 

sex, Congress intended to strike at the entire spectrum of disparate treatment of men 

and women resulting from sex stereotypes.”) (citation and quotation marks omitted) 

(emphasis added).

C. Stephens’s Purported Intent to Abide by R.G.’s Dress Code for 

Female Employees Is Not Relevant.

The EEOC argues that compelling R.G. to allow male employees to wear the 

uniform for female employees would not invalidate all sex-specific dress codes 

because “Stephens fully intended to abide by the female dress code—and to continue 

to dress in a professional manner at work.” Pl. Mem. at 31; see also Pl. Mem. at 29 

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(arguing that Stephens “intended to dress professionally, in a manner consistent with 

[RG’s] dress requirements for women”) (citing Stephens Dep. 133:6-9 (Pl. Ex. Q)). 

This is another sleight-of-hand meant to distract from the central issue in this case. 

In order to utilize a sex-specific dress code to control the public face of its 

business, an employer must be able to do two things. First, the employer must be able 

to dictate sex-differentiated appearance regulations. Second, the employer must be 

able to set an objective standard for determining the sex of an employee. This means 

that the employer must be allowed to apply its sex-specific dress code based on the 

employee’s biological sex rather than his or her gender identity. Otherwise, the sexspecific nature of the dress code is not useful for controlling the image of the 

employer’s business. 

Consider, for example, a company that requires its male employees to wear 

men’s suits and its female employees to wear skirts or dresses. By the EEOC’s logic, a 

male employee could wear a men’s suit to work one day, declare his gender identity to 

be female and wear a skirt the next day, and then declare himself male and switch 

back to a men’s suit at some point in the future, all without violating the company’s 

“sex-specific” dress code. Thus, if the EEOC is right that an employer may establish 

sex-differentiated appearance standards but may not apply those standards based on 

its employees’ biological sex, it is meaningless to say that the employer’s appearance 

standards are sex-differentiated in the first instance.

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Here, the undisputed record evidence establishes that, from the time of hiring 

through the time of termination, Stephens was a biological male. Indeed, this fact is

conclusively established for purposes of this proceeding. See Pl.’s Resp. to Def.’s First 

Set of Discovery at Request for Admission No. 6 (Def. SJ. Ex. 25) (denying that 

Stephens is “female and not a male for purposes of determining whether discrimination 

on the basis of ‘sex’ has occurred under Title VII”) (emphasis added); Stephens Dep. 

at 49:5-13 (Def. SJ Ex. 14) (testifying that Stephens “was assigned male at birth”). But 

if this Court does not allow R.G. to apply its dress code to Stephens based on 

Stephens’s undisputed status as a biological man, it will transform the sex-specificity 

of R.G.’s dress code into a dead letter that serves no purpose, and in that way, it will

undermine R.G.’s ability to control its public face and create distraction-free 

environments for grieving families.

Underlying the EEOC’s arguments is an unstated claim that Stephens is a 

transgender woman and that, because of that alone, Stephens should have been 

allowed to comply with R.G.’s dress code for female funeral directors. But arguing 

that transgendered employees may comply with their employers’ sex-specific dress 

codes in accordance with their gender identity, while non-transgendered employees 

must comply with those dress codes in accordance with their biological sex, essentially 

asserts that transgender status is a protected classification entitled to special treatment 

under Title VII. This Court, however, has already rejected that position in this very 

case. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 595 

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(E.D. Mich. 2015) (holding that “transgender status is not a protected class under 

Title VII”). The EEOC should not be able to avoid the clear import of that holding 

by subtly repackaging its arguments. 

* * *

The foregoing discussion demonstrates that, as a matter of law, Rost’s 

statement that R.G. discharged Stephens as a result of Stephens’s intent to wear the

female uniform in violation of R.G.’s sex-specific dress code does not constitute 

direct evidence of unlawful sex stereotyping under Title VII. This Court should thus

refuse to hold that R.G.’s enforcement of its dress code constitutes unlawful sex 

stereotyping simply because it is sex-specific. Rather, the Court should follow the lead 

of other courts (like the Ninth Circuit in Jespersen), apply equal-burdens analysis to 

R.G.’s dress code, and determine that R.G.—not the EEOC—is entitled to summary 

judgment on the unlawful discharge claim.

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

Violate its Sincerely Held Religious Beliefs.

A. Contrary to the EEOC’s Contentions, Applying Title VII in this 

Case Would Substantially Burden R.G.’s Religious Exercise.

The EEOC contends that its attempt to apply Title VII in this case does not 

substantially burden or even affect R.G.’s religious exercise. See Pl. Mem. at 18-24. Yet 

the EEOC’s arguments rely upon mischaracterizations of R.G.’s RFRA defense. This 

Court should thus reject the EEOC’s position and conclude that R.G. has established 

the prerequisites of its RFRA defense: (1) religious exercise; and (2) substantial burden.

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Religious Exercise. As R.G. explained in its memorandum in support of its 

motion for summary judgment, Rost and R.G. engage in religious exercise that RFRA 

protects. See Def. SJ Mem. at 15-18. The EEOC tries to reduce R.G.’s religious 

exercise to its “placement of devotionals and cards for the public.” Pl. Mem. at 20.

But the undisputed facts establish that Rost’s life work of serving those who mourn 

the loss of their loved ones—that is, his very operation of R.G.—constitutes 

protected religious exercise. The Supreme Court has recognized that “the exercise of 

religion involves . . . acts that are engaged in for religious reasons,” which include 

“[b]usiness practices that are compelled . . . by the tenets of a religious doctrine.” 

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014) (quotation marks and 

citation omitted). Here, the record shows that Mr. Rost’s “faith compels [him]” to 

“serve grieving people” as he does through R.G., see T. Rost Aff. ¶ 10 (Def. SJ Ex. 1)

(“I believe God has called me to serve grieving people . . . , and my faith compels me 

to do this important work.”). Accordingly, R.G. is not just a business; it is the 

embodiment of Rost’s religious exercise. 

Furthermore, another more specific aspect of R.G.’s and Rost’s religious 

exercise is at issue in this case. R.G. operates consistently with Rost’s sincerely held 

religious beliefs that a person’s sex (whether male or female) is an immutable Godgiven gift and that people should not deny or attempt to change their sex. Id. at ¶ 42.

Because of these convictions, R.G. will not purchase female attire for a male funeral 

director (or male attire for a female funeral director), or otherwise permit a funeral 

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director to wear the uniform for members of the opposite sex. See id. at ¶¶ 43-46.

Supreme Court precedent confirms that this qualifies as religious exercise protected 

under RFRA. For just as Hobby Lobby’s religiously motivated business practice of 

declining to pay for its employees’ abortion-inducing drugs is protected religious 

exercise under RFRA, see Hobby Lobby, 134 S. Ct. at 2766, 2775, so is R.G.’s religiously 

motivated decision not to purchase female attire for a male funeral director.3

These facts about R.G.’s religious exercise show that the EEOC is incorrect 

when it claims that R.G. discharged Stephens simply because Stephens “does not act 

as Rost’s beliefs dictate [Stephens] should.” Pl. Mem. at 20. On the contrary, the 

uncontested evidence establishes that Rost would not have discharged Stephens if 

Stephens had stated an intent to present as a woman on Stephens’s own time while 

complying with R.G.’s dress code at work. Rost 30(b)(6) Dep. 137:11-15 (Def. SJ Ex. 

4); T. Rost Aff. ¶¶ 50-51 (Def. SJ Ex. 1). Thus, the decisive factor in R.G.’s 

employment decision was Stephens’s intent to dress in female attire while representing 

R.G. because what Stephens wears at work implicates Rost’s religious convictions and 

R.G.’s dress code. T. Rost Aff. ¶ 50 (Def. SJ Ex. 1).

Substantial Burden. As R.G. demonstrated in its memorandum in support of its 

motion for summary judgment, applying Title VII in this case would substantially 

 

3 The EEOC curiously argues that RFRA protects only “religious exercise, not simply beliefs.” Pl. 

Mem. at 18. This argument is irrelevant because, as explained above, R.G. engages in protected 

religious exercise. But to the extent that it is relevant, it is flatly wrong because “the exercise of 

religion” protected by RFRA includes “belief and profession” as well as “the performance of (or 

abstention from) physical acts that are engaged in for religious reasons.” Hobby Lobby, 134 S. Ct. at 

2770.

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burden R.G.’s and Rost’s religious exercise. See Def. SJ Mem. at 18-19. The EEOC 

disagrees, claiming that “Rost’s religious exercises are not affected” by Stephens’s 

wearing the uniform for female funeral directors, Pl. Mem. at 20, and that “RG[] 

cannot establish a substantial burden” on its exercise of religion, id. at 21. 

But the undisputed facts demonstrate that forcing R.G. to allow Stephens to 

wear the uniform for female funeral directors would require Rost “to engage in 

conduct that seriously violates [his] religious beliefs,” Holt v. Hobbs, 135 S. Ct. 853, 862 

(2015), thus imposing a substantial burden on R.G.’s exercise of religion. See Def. SJ 

Mem. at 18. Moreover, as R.G. has already shown, requiring it to permit a male 

funeral director to wear the uniform for female funeral directors would directly 

interfere with—and thus impose a substantial burden on—R.G.’s ability to carry out 

Rost’s religious exercise of caring for the grieving. Id. at 18-19. It would do this in at 

least two ways. First, allowing a funeral director to wear the uniform for members of 

the opposite sex would often create distractions for the deceased’s loved ones and 

thereby hinder their healing process. T. Rost 30(b)(6) Dep. 54:8-17, 59:13-60:9 (Def. 

SJ Ex. 4); T. Rost Aff. ¶¶ 36-38 (Def. SJ Ex. 1). Second, by forcing R.G. to violate 

Rost’s faith, this application of Title VII would significantly pressure Rost to leave the 

funeral industry and end his ministry to grieving people. T. Rost Aff. ¶ 48 (Def. SJ Ex. 

1). Thus, applying Title VII here would substantially burden R.G.’s and Rost’s 

religious exercise of caring for the grieving.

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

Satisfies Strict Scrutiny.

The EEOC argues that even if this application of Title VII substantially 

burdens Rost’s religious exercise, that burden is nonetheless justified because it 

purportedly serves a compelling government interest in the “‘eradication of 

employment discrimination based on the criteria identified in Title VII.’” Pl. Mem. at 

25-26 (quoting EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810 (S.D. Ind. 

2002)). This argument is flawed because RFRA’s strict-scrutiny test focuses not on 

generalized state interests like the eradication of discrimination in employment, but 

rather on the state’s specific interest in applying the law at issue to the party before 

the court and “the asserted harm of granting specific exemptions to [that party].” 

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006); see 

also Hobby Lobby, 134 S. Ct. at 2779 (similar); Hurley v. Irish-Am. Gay, Lesbian & Bisexual 

Grp. of Bos., 515 U.S. 557, 578 (1995) (analyzing a nondiscrimination law’s “apparent 

object” when “applied . . . in the way it was done [t]here” rather than its general 

purpose of prohibiting discrimination on all the statutorily “proscribed grounds”). 

Thus, the relevant question is whether the state has a specific compelling interest in 

forcing R.G. to allow its male funeral directors to wear the uniform for female funeral 

directors while on the job. But as R.G. has shown in its memorandum in support of 

its motion for summary judgment, the EEOC has no interest in requiring that. See

Def. SJ Mem. at 19-20.

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This need for a particularized analysis of the asserted governmental interest 

explains why the EEOC’s reliance on dicta in Hobby Lobby is unavailing. See Pl. Mem. 

at 24-25. The majority in Hobby Lobby addressed the principal dissent’s contention that 

“discrimination in hiring, for example on the basis of race, might be cloaked as 

religious practice to escape legal sanction.” 134 S. Ct. at 2783 (citing id. at 2804-05 

(Ginsberg, J., dissenting)). The EEOC argues that the Hobby Lobby majority’s rejection 

of the dissent’s contention somehow means that “Title VII serves a compelling 

governmental interest which cannot be overridden by RFRA” in any case. Pl. Mem. at 

24. The EEOC is incorrect.

The majority in Hobby Lobby stated that its decision “provides no . . . shield” 

against cloaked racial discrimination because the government “has a compelling 

interest in providing an equal opportunity to participate in the workforce without 

regard to race, and prohibitions on racial discrimination are precisely tailored to 

achieve that critical goal.” 134 S. Ct. at 2783. The majority spoke only of racial 

discrimination, not discrimination based on sex, sex stereotyping, or transgender 

status. And it certainly did not discuss the government’s interest in applying Title VII 

to force a funeral home to allow its funeral directors to dress in the uniform for 

members of the opposite sex. Hobby Lobby thus did not address what is at issue here. 

Notably, the Court in Hobby Lobby confirmed that RFRA’s strict-scrutiny 

analysis demands a “focused inquiry” that “look[s] beyond broadly formulated 

interests” and scrutinizes the government’s particularized interest in applying its law 

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under the specific circumstances. Id. at 2779 (quotation marks and alterations omitted). 

Hobby Lobby thus leaves no doubt that each court must scrutinize the facts before it to 

determine whether that particular application of a government mandate satisfies strict 

scrutiny. Therefore, the EEOC’s attempt to invoke Hobby Lobby in its effort to bypass 

the particularized analysis that Hobby Lobby mandates is unpersuasive. 

Finally, it is telling that the EEOC does not even attempt to explain why 

forcing R.G. to allow its funeral directors to wear uniforms for members of the 

opposite sex satisfies RFRA’s least-restrictive-means requirement. The EEOC’s 

silence on this point is not at all surprising because “[t]he least-restrictive-means 

standard is exceptionally demanding.” Id. at 2780. Thus, for the reasons explained in 

R.G.’s memorandum in support of its motion for summary judgment, this Court 

should find that the EEOC has not satisfied the least-restrictive-means requirement, 

see Def. SJ Mem. at 20-21, conclude that R.G. must prevail on its RFRA defense, and 

declare that R.G. (not the EEOC) is entitled to summary judgment on the EEOC’s 

unlawful discharge claim.

4

III. The EEOC Is Not Entitled to Summary Judgment on Its ClothingAllowance Claim.

The EEOC also contends that R.G. violates Title VII through a purported 

 

4 The EEOC also argues that the application of Title VII in this case does not violate R.G.’s freeexercise rights under the First Amendment. See Pl. Mem. at 15-17. Because RFRA provides more 

expansive protection for R.G.’s free-exercise rights than the First Amendment does, and because 

R.G. is entitled to summary judgment on its RFRA defense, the Court need not reach R.G.’s First 

Amendment free-exercise defense. See Hobby Lobby, 134 S. Ct. at 2785 (concluding, after finding a 

RFRA violation, that it was “unnecessary to reach the First Amendment claim”).

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“policy of paying for the work clothing of male employees” but not “provid[ing] a 

comparable benefit to female employees.” Pl. Mem. at 32. This argument also fails.

First, the EEOC does not have standing to maintain a claim with respect to 

R.G.’s clothing allowance on behalf of a class of female employees. As explained in 

R.G.’s memorandum in support of its motion for summary judgment, see Def. SJ 

Mem. at 21-24, because the clothing-allowance claim is “unrelated to [the charging] 

party” and involves discrimination “of a kind other than that raised by [the charging 

party],” it is not the result of an “investigation reasonably expected to grow out of 

[Stephens’s] charge of discrimination.” EEOC v. Bailey Co., 563 F.2d 439, 446-448 (6th 

Cir. 1977), disapproved of on other grounds by Christiansburg Garment Co. v. EEOC, 434 U.S. 

412 (1978). Consequently, the EEOC lacks authority to raise the claim in this lawsuit. 

Second, contrary to the EEOC’s assertions, the undisputed facts demonstrate 

that R.G. provides equivalent clothing benefits to male employees and female 

employees. For funeral directors, it is R.G.’s policy to provide all of them (whether 

male or female) with company-issued suits. See Def. SJ Mem. at 24. For employees 

who interact with the public in positions other than funeral director, even though the 

male employees receive company-issued suits and the female employees receive a 

clothing allowance, both sexes receive clothing benefits that enable them to conform 

to the dress code and replace worn clothing as necessary. See id. at 24-25. And for 

employees in positions that do not interact with the public, no one (regardless of their 

sex) receives clothes or a clothing allowance. See id. at 25.

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The EEOC claims that the benefits are not comparable because the clothing 

allowance for female employees who interact with the public in positions other than 

funeral director is only $150 for full-time employees and $75 for part-time employees, 

while the suit purchased for comparable male employees is worth “in excess of $200.” 

Pl. Mem. at 33. This argument ignores that these female employees are given the 

allowance every year, while the men’s suits are used until they wear out. Thus, if a 

part-time male employee has his suit for three years, the value of what he receives 

during that time is approximately $225, and a part-time female employee who works 

during those same three years has equally received clothing allowance checks in the 

amount of $225. Or if that male employee’s suit lasts for five years, which is common 

for part-time male employees, see T. Rost Dep. 18:10-24 (Def. SJ Ex. 3), the value of 

what he receives ($225) is far less than what a comparable female employee obtains 

over that time ($375). So the EEOC’s suggestion that R.G.’s clothing benefits 

discriminate against female employees is simply mistaken. 

For these reasons, R.G.—not the EEOC—is entitled to summary judgment on

the EEOC’s clothing-allowance claim.

Conclusion

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

EEOC’s motion for summary judgment.

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Dated: May 2, 2016

Respectfully submitted, 

 /s/ Douglas G. Wardlow

Douglas G. Wardlow

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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CERTIFICATE OF SERVICE

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

Opposition to EEOC’s Motion for Summary Judgment and all accompanying papers 

(which include the Exhibits in Support of this Opposition) 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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