UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

v. Case No. 14-13710

R.G. & G.R. Harris Funeral Homes, Inc., Sean F. Cox

United States District Court Judge

Defendant.

______________________________________/

AMENDED OPINION & ORDER 1

DENYING DEFENDANT’S MOTION TO DISMISS

The United States Equal Employment Opportunity Commission (the “EEOC”) brought

this employment discrimination action against R.G. & G.R. Harris Funeral Home, Inc. (“the

Funeral Home”) asserting two claims against the Funeral Home. First, it asserts a Title VII claim

on behalf of the Funeral Home’s former Funeral Director/Embalmer Stephens, who is

transgender and is transitioning from male to female. The EEOC asserts that the Funeral Home’s

decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home

fired Stephens because Stephens is transgender, because of Stephens’s transition from male to

female, and/or because Stephens did not conform to the defendant employer’s sex- or genderbased preferences, expectations, or stereotypes. Second, the EEOC asserts that the Funeral

Home engaged in an unlawful employment practice in violation of Title VII by providing a

clothing allowance/work clothes to male employees but failing to provide such assistance to

Due to a technical error, the previous opinion issued was missing hyphens on pages 2 1

and 14.

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female employees because of sex. This second claim appears to be brought on behalf of an

unidentified class of female employees of the Funeral Home.

The Funeral Home filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). The

parties fully briefed the issues and the Court heard oral argument on April 16, 2015. For the

reasons that follow, the Court shall DENY the Funeral Home’s Motion to Dismiss. 

The pending motion does not challenge the EEOC’s claim based on the alleged disparate

treatment in relation to a clothing allowance and, therefore, that claim remains.

This Court also concludes that the EEOC’s complaint states a Title VII claim against the

Funeral Home on behalf of Stephens. As explained below, transgender status is not a protected

class under Title VII. Thus, if the EEOC’s complaint had alleged that the Funeral Home fired

Stephens based solely upon Stephens’s status as a transgender person, then this Court would

agree with the Funeral Home that the EEOC’s complaint fails to state a claim under Title VII. 

But the EEOC’s complaint also asserts that the Funeral Home fired Stephens “because Stephens

did not conform to the [Funeral Home’s] sex- or gender-based preferences, expectations, or

stereotypes.” (Compl. at ¶ 15). And binding Sixth Circuit precedent establishes that any person

– without regard to labels such as transgender – can assert a sex-stereotyping genderdiscrimination claim under Title VII, under a Price Waterhouse theory, if that person’s failure to

conform to sex stereotypes was the driving force behind the termination. This Court therefore

concludes that the EEOC’s complaint states a claim as to Stephens’s termination.

Finally, the remaining arguments in the Funeral Home’s motion are without merit or are

improperly raised in a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6). 

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BACKGROUND 

On September 25, 2014, the EEOC filed this action against the Funeral Home. The

EEOC’s complaint describes the nature of this action as follows:

This is an action under Title VII of the Civil Rights Act of 1964 to correct

unlawful employment practices on the basis of sex and to provide appropriate

relief to Amiee Stephens who was adversely affected by such practices. As

alleged with greater particularity in paragraphs 8 through 16 below, Defendant

R.G. & G.R. Harris Funeral Home, Inc., fired Stephens, a transgender woman,

because of sex. Additionally, as alleged in paragraphs 12 and 17 below,

Defendant discriminated against female employees by not providing them work

clothing while providing work clothing to male employees.

(Compl. at 1). The EEOC.’s complaint alleges as follows in its “Statement of Facts” section:

8. Amiee Stephens had been employed by Defendant as a Funeral

Director/Embalmer since October 2007. 

9. Stephens adequately performed the duties of her position. 

10. Stephens is a transgender woman. On or about July 31, 2013, Stephens informed

Defendant Employer and her co-workers in a letter that she was undergoing a

gender transition from male to female and intended to dress in appropriate

business attire at work as a woman from then on, asking for their support and

understanding. 

11. On or about August 15, 2013, Defendant Employer’s owner fired

Stephens, telling her that what she was “proposing to do” was

unacceptable. 

12. Since at least September 13, 2011, the Defendant Employer has provided a

clothing allowance to male employees but not female employees.

Defendant Employer provides work clothes to male employees but

provides no such assistance to female employees. 

(Id. at 3-4). The EEOC’s complaint alleges as follows in its “Statement of Claims” section:

13. Paragraphs 8 through 12 are fully incorporated herein. 

14. Defendant engaged in unlawful employment practices at its Garden City,

Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. §

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2000e-2(a)(1), by terminating Stephens because of sex. 

15. Defendant Employer’s decision to fire Stephens was motivated by sex-based

considerations. Specifically, Defendant Employer fired Stephens because Stephens

is transgender, because of Stephens’s transition from male to female, and/or

because Stephens did not conform to the Defendant Employer’s sex- or genderbased preferences, expectations, or stereotypes. 

16. The effect of the practices complained of in paragraphs 8 through 11 and 14

through 15 above has been to deprive Stephens of equal employment

opportunities and otherwise adversely affect her status as an employee because of

her sex. 

17. Defendant engaged in unlawful employment practices at its Garden City,

Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. §

2000e-2(a)(1), by providing a clothing allowance/work clothes to male employees

but failing to provide such assistance to female employees because of sex. 

18. The effect of the practices complained of in paragraphs 12 and 17 above has been

to deprive a class of female employees of equal employment opportunities and

otherwise adversely affect their status as employees because of their sex. 

19. The unlawful employment practices complained of in paragraphs 8 through 18

above were intentional. 

20. The unlawful employment practices complained of in paragraphs 8 through 18

above were done with malice or with reckless indifference to the federally

protected rights of Stephens and a class of female employees.

(Id. at 4-5) (emphasis added). The prayer for relief in the EEOC’s complaint states as follows:

PRAYER FOR RELIEF 

Wherefore, the Commission respectfully requests that this Court: 

A. Grant a permanent injunction enjoining Defendant Employer, its officers,

agents, servants, employees, attorneys, and all persons in active concert or

participation with them, from engaging in any unlawful practice which

discriminates against an employee or applicant because of their sex,

including on the basis of gender identity. 

B. Order Defendant Employer to institute and carry out policies, practices,

and programs which provide equal employment opportunities regardless of

sex (including gender identity), and which eradicate the effects of its past

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and present unlawful employment practices. 

C. Order Defendant Employer to make Stephens whole by providing

appropriate backpay with prejudgment interest, in amounts to be

determined at trial, and other affirmative relief necessary to eradicate the

effects of its unlawful employment practices, including but not limited to

front pay for Stephens.

D. Order Defendant Employer to make Stephens and a class of female

employees whole by providing compensation for past and future pecuniary

losses resulting from the unlawful employment practices described in

paragraphs 8 through 18 above, including medical losses, job search

expenses, and lost clothing allowances, in amounts to be determined at

trial. 

E. Order Defendant Employer to make Stephens and a class of female

employees whole by providing compensation for past and future

nonpecuniary losses resulting from the unlawful practices complained of

in paragraphs 8 through 18 above, including emotional pain, suffering,

inconvenience, loss of enjoyment of life, and humiliation, in amounts to be

determined at trial. 

F. Order Defendant Employer to pay Stephens and a class of female

employees punitive damages for its malicious or recklessly indifferent

conduct described in paragraphs 8 through 18 above, in amounts to be

determined at trial. 

G. Grant such further relief as the Court deems necessary and proper in the

public interest. 

H. Award the Commission its costs of this action.

(Id. at 6-8). 

On November 19, 2014, the Funeral Home filed a Motion to Dismiss, pursuant to Fed. R.

Civ. P. 12(b)(6). The motion has been fully briefed and the Court heard oral argument on April

16, 2015.

STANDARD OF DECISION

When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must

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construe the complaint in a light most favorable to the plaintiff and accept all the well-pleaded

factual allegations as true. Evans-Marshall v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005). 

Although a heightened fact pleading of specifics is not required, the plaintiff must bring forth

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). 

ANALYSIS 

I. The Funeral Home’s Motion Does Not Challenge The EEOC’s Claims Based On

The Alleged Disparate Treatment In Relation To Clothing Allowances For Male

And Female Employees.

The EEOC’s complaint in this action asserts two different types of claims against the

Funeral Home. 

First, the EEOC asserts that the Funeral Home’s decision to fire Stephens was motivated

by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is

transgender, because of Stephens’s transition from male to female, and/or because Stephens did

not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or

stereotypes. 

Second, the EEOC asserts that the Funeral Home engaged in an unlawful employment

practice in violation of Title VII by “providing a clothing allowance/work clothes to male

employees but failing to provide such assistance to female employees because of sex.” (Compl.

at ¶ 17). This second type of claim appears to be brought on behalf of an unidentified class of

female employees of the Funeral Home.

Although the Funeral Home’s motion is titled a “Motion to Dismiss” and asks the Court

to dismiss the EEOC’s “complaint,” (Def.’s Motion at 1), the motion does not include any

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challenges to the EEOC’s second claim. As such, that claim would remain even if the Court

found the Funeral Home’s challenges to the first claim to have merit.

II. The EEOC’s Complaint States A Title VII Claim Against The Funeral Home On

Behalf Of Stephens.

Again, as to its first claim, the EEOC asserts that the Funeral Home’s decision to fire

Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens

because Stephens is transgender, because of Stephens’s transition from male to female, and/or

because Stephens did not conform to the Defendant Employer’s sex- or gender-based

preferences, expectations, or stereotypes. 

A. Transgender Status Is Not A Protected Class Under Title VII.

If the EEOC’s complaint had alleged that the Funeral Home fired Stephens based solely

upon Stephens’s status as a transgender person, then this Court would agree with the Funeral

Home that the EEOC’s complaint would fail to state a claim under Title VII. That is because,

like sexual orientation, transgender or transsexual status is currently not a protected class under

Title VII. See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Stating

that “sexual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Etsitty

v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (Concluding that “transsexuals are

not a protected class under Title VII”, rejecting the plaintiff’s argument for “a more expansive

interpretation of sex that would include transsexuals as a protected class,” and noting that “[e]ven

the Sixth Circuit, which extended protection to transsexuals under the Price Waterhouse theory” 

“explained that an individual’s status as a transsexual should be irrelevant to the availability of

Title VII protection.”).

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But the EEOC’s complaint does not allege that the Funeral Home fired Stephens based

solely upon Stephens’s status as a transgender person. The EEOC’s complaint also asserts that

the Funeral Home fired Stephens “because Stephens did not conform to the [Funeral Home’s]

sex- or gender-based preferences, expectations, or stereotypes.” (Compl. at ¶ 15).

In its brief, however, the EEOC appears to seek a more expansive interpretation of sex

under Title VII that would include transgender persons as a protected class. (Pl.’s Br. at 8)

(Arguing that the EEOC’s “complaint states a claim of sex discrimination under Title VII

because Stephens is transgender and [the Funeral Home] fired her for that reason.”). There is no

Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgender status

is a protected class under Title VII. 

B. A Transgender Person – Just Like Anyone Else – Can Bring A Sex StereoTyping Gender-Discrimination Claim Under Title VII.

Even though transgender/transsexual status is currently not a protected class under Title

VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in

accordance and/or identify with their perceived sex or gender.” Myers v. Cuyahoga Cnty, Ohio,

183 F. A’ppx 510, (6th Cir. 2006) (Citing Smith v. City Of Salem, 378 F.3d 566 (6th Cir. 2004)

and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)).

The seminal Sixth Circuit case on this issue is Smith v. City of Salem. The plaintiff in

Smith was born a male and had been employed by the Salem Fire Department for seven years

without any negative incidents. After being diagnosed with Gender Identity Disorder, Smith

began expressing a more feminine appearance on a full-time basis, including while at work. 

Smith, 378 F.3d at 568. Smith’s co-workers began questioning him about his appearance and

commenting that his appearance and mannerisms were not “masculine enough.” Id. Smith then

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advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his

treatment would eventually include “complete physical transformation from male to female.” Id. 

The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to

terminate Smith, which included requiring him to undergo three separate psychological

evaluations in the hope that he would quit.

Smith ultimately filed suit and his claims against the city included a Title VII claim of sex

stereotyping, in violation of the Supreme Court’s pronouncements in Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989). The district court dismissed Smith’s sex-stereotyping claim

under Title VII but the Sixth Circuit reversed. 

The Sixth Circuit began its analysis by looking at the Supreme Court’s decision in Price

Waterhouse:

In Price Waterhouse, the plaintiff, a female senior manager in an accounting firm,

was denied partnership in the firm, in part, because she was considered “macho.”

490 U.S. at 235, 109 S.Ct. 1775. She was advised that she could improve her

chances for partnership if she were to take “a course at charm school,” “walk

more femininely, talk more femininely, dress more femininely, wear make-up,

have her hair styled, and wear jewelry.” Id. (internal quotation marks omitted). Six

members of the Court agreed that such comments bespoke gender discrimination,

holding that Title VII barred not just discrimination because Hopkins was a

woman, but also sex stereotyping—that is, discrimination because she failed to act

like a woman. Id. at 250–51, 109 S.Ct. 1775 (plurality opinion of four Justices);

id. at 258–61, 109 S.Ct. 1775 (White, J., concurring); id. at 272–73, 109 S.Ct.

1775 (O’Connor, J., concurring) (accepting plurality’s sex stereotyping analysis

and characterizing the “failure to conform to [gender] stereotypes” as a

discriminatory criterion; concurring separately to clarify the separate issues of

causation and allocation of the burden of proof).

Smith, 378 F.3d at 571-72. The Smith court further explained that:

The Supreme Court made clear that in the context of Title VII, discrimination

because of “sex” includes gender discrimination: “In the context of sex

stereotyping, an employer who acts on the basis of a belief that a woman cannot

be aggressive, or that she must not be, has acted on the basis of gender.” Price

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Waterhouse, 490 U.S. at 250, 109 S.Ct. 1775. The Court emphasized that “we are

beyond the day when an employer could evaluate employees by assuming or

insisting that they matched the stereotype associated with their group.” Id. at 251,

109 S.Ct. 1775.

Id. The Smith court concluded that Smith had stated a Title VII claim for relief, pursuant to

Price Waterhouse’s prohibition of sex stereotyping, based on his gender non-conforming

behavior and appearance. The court noted that:

His complaint sets forth the conduct and mannerisms which, he alleges, did not

conform with his employers’ and co-workers’ sex stereotypes of how a man

should look and behave. Smith’s complaint states that, after being diagnosed with

GID, he began to express a more feminine appearance and manner on a regular

basis, including at work. The complaint states that his co-workers began

commenting on his appearance and mannerisms as not being masculine enough;

and that his supervisors at the Fire Department and other municipal agents knew

about this allegedly unmasculine conduct and appearance. The complaint then

describes a high-level meeting among Smith’s supervisors and other municipal

officials regarding his employment. Defendants allegedly schemed to compel

Smith’s resignation by forcing him to undergo multiple psychological evaluations

of his gender non-conforming behavior. The complaint makes clear that these

meetings took place soon after Smith assumed a more feminine appearance and

manner and after his conversation about this with Eastek. In addition, the

complaint alleges that Smith was suspended for twenty-four hours for allegedly

violating an unenacted municipal policy, and that the suspension was ordered in

retaliation for his pursuing legal remedies after he had been informed about

Defendants’ plan to intimidate him into resigning. In short, Smith claims that the

discrimination he experienced was based on his failure to conform to sex

stereotypes by expressing less masculine, and more feminine mannerisms and

appearance.

Id. at 572.

The Smith court explained that “[h]aving alleged that his failure to conform to sex

stereotypes concerning how a man should look and behave was the driving force behind

Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender

discrimination.” Id.

The Smith court went on to explain that the district court erred in relying on “a series of

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pre-Price Waterhouse cases from other federal appellate courts holding that transsexuals, as a

class, are not entitled to Title VII protection because ‘Congress had a narrow view of sex in

mind’ and ‘never considered nor intended that [Title VII] apply to anything other than the

traditional concept of sex.’” Id. (citations omitted). In that “earlier jurisprudence, male-to-female

transsexuals (who were the plaintiffs in Ulane, Sommers, and Holloway) – as biological males

whose outward behavior and emotional identity did not conform to socially-prescribed

expectations of masculinity – were denied Title VII protection by courts because they were

considered victims of ‘gender’ rather than ‘sex’ discrimination.” Smith, 378 F.3d at 573. 

The Smith court held that the approach in those cases, and the district court’s position

below, “has been eviscerated by Price Waterhouse.” Id. “By holding that Title VII protected a 2

woman who failed to conform to social expectations concerning how a woman should look and

behave, the Supreme Court established that Title VII’s reference to ‘sex’ encompasses both the

biological differences between men and women, and gender discrimination, that is,

discrimination based on a failure to conform to stereotypical gender norms. See Price

Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775.” Id.

Thus, “[a]fter Price Waterhouse, an employer who discriminates against women because,

for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the

discrimination would not occur but for the victim’s sex. It follows that employers who

discriminate against men because they do wear dresses and makeup, or otherwise act femininely,

are also engaging in sex discrimination, because the discrimination would not occur but for the

Notably, the Funeral Home’s motion and brief rely on some of the very same cases that 2

the Sixth Circuit stated were eviscerated by Price Waterhouse. 

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victim’s sex.” Smith, 378 F.3d at 574 (emphasis added).

The Sixth Circuit then rejected the position that, because a person is transgender, that

person is somehow less worthy of protection under Title VII as to a sex-stereotyping claim:

Yet some courts have held that this latter form of discrimination is of a

different and somehow more permissible kind. For instance, the man who acts in

ways typically associated with women is not described as engaging in the same

activity as a woman who acts in ways typically associated with women, but is

instead described as engaging in the different activity of being a transsexual (or in

some instances, a homosexual or transvestite). Discrimination against the

transsexual is then found not to be discrimination “because of ... sex,” but rather,

discrimination against the plaintiff’s unprotected status or mode of

self-identification. In other words, these courts superimpose classifications such

as “transsexual” on a plaintiff, and then legitimize discrimination based on the

plaintiff’s gender non-conformity by formalizing the non-conformity into an

ostensibly unprotected classification. See, e.g., Dillon v. Frank, No. 90–2290,

1992 WL 5436 (6th Cir. Jan.15, 1992).

Such was the case here: despite the fact that Smith alleges that

Defendants’ discrimination was motivated by his appearance and mannerisms,

which Defendants felt were inappropriate for his perceived sex, the district court

expressly declined to discuss the applicability of Price Waterhouse. The district

court therefore gave insufficient consideration to Smith’s well-pleaded claims

concerning his contra-gender behavior, but rather accounted for that behavior only

insofar as it confirmed for the court Smith’s status as a transsexual, which the

district court held precluded Smith from Title VII protection.

Such analyses cannot be reconciled with Price Waterhouse, which does

not make Title VII protection against sex stereotyping conditional or provide any

reason to exclude Title VII coverage for non sex-stereotypical behavior simply

because the person is a transsexual. As such, discrimination against a plaintiff

who is a transsexual—and therefore fails to act and/or identify with his or her

gender—is no different from the discrimination directed against Ann Hopkins in

Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex

stereotyping based on a person’s gender non-conforming behavior is

impermissible discrimination, irrespective of the cause of that behavior; a label,

such as “transsexual,” is not fatal to a sex discrimination claim where the victim

has suffered discrimination because of his or her gender non-conformity. 

Smith, 378 F.3d at 574-75. “Accordingly, we hold that Smith has stated a claim for relief

pursuant to Title VII’s prohibition of sex discrimination.” Id.

In Barnes v. City of Cincinnati, the Sixth Circuit concluded that the transsexual plaintiff

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in that case had also sufficiently pleaded a Title VII sex discrimination claim under a Price

Waterhouse theory. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). The plaintiff in

that case, Barnes, was employed by the Cincinnati Police Department. Barnes “was a male-tofemale transsexual who was living as a male while on duty but often lived as a woman off duty. 

Barnes had a reputation throughout the police department as a homosexual, bisexual or crossdresser.” Id. at 733.

Following a promotion to sergeant, Barnes was assigned to District One for a

probationary period. During that probationary period, Barnes “was living off-duty as a woman,

had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his

face on some occasions.” Id. at 734. 

After Barnes was demoted from sergeant, he filed suit and asserted a claim under Title

VII. After a jury verdict in Barnes’s favor, the City appealed. Among other things, the City

asserted that Barnes did not sufficiently plead or prove a sex discrimination claim under Title

VII. The Sixth Circuit rejected that argument, explaining as follows:

In this case, Barnes claims that the City intentionally discriminated against

him because of his failure to conform to sex stereotypes. The City claims that

Barnes failed to establish the first and the fourth elements of a prima facie case,

because he was not a member of a protected class and he failed to identify a

similarly situated employee who passed probation.

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

the City’s claim that Barnes was not a member of a protected class lacks merit. In

Smith, this court held that the district court erred in granting a motion to dismiss

by holding that transsexuals, as a class, are not entitled to Title VII protections,

stating:

Sex stereotyping based on a person’s gender non-conforming

behavior is impermissible discrimination, irrespective of the cause

of that behavior; a label, such as “transsexual,” is not fatal to a sex

discrimination claim where the victim has suffered discrimination

because of his or her gender non-conformity.

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Id. at 575. By alleging that his failure to conform to sex stereotypes concerning

how a man should look and behave was the driving force behind defendant’s

actions, Smith stated a claim for relief pursuant to Title VII’s prohibition of sex

discrimination. Id. at 573, 575. Following the holding in Smith, Barnes established

that he was a member of a protected class by alleging discrimination against the

City for his failure to conform to sex stereotypes.

Barnes, 401 F.3d at 737.

Accordingly, Smith and Barnes establish that a transgender person – just like anyone else

– can bring a sex-stereotyping gender-discrimination claim under Title VII under a Price

Waterhouse theory.

Here, the EEOC’s complaint alleges that Stephens informed the Funeral Home that

Stephens “was undergoing a gender transition from male to female and intended to dress in

appropriate business attire at work as a woman from then on,” and that the Funeral Home

responded by firing Stephens and stating that what Stephens “was ‘proposing to do’ was

unacceptable.” (Compl. at ¶¶ 10 & 11). The complaint further alleges that the Funeral Home’s

“decision to fire Stephens was motivated by sex-based considerations,” and that the Funeral

Home fired Stephens because Stephens “did not conform to the [Funeral Home’s] sex- or genderbased preferences, expectations, or stereotypes.” (Compl. at ¶ 15). 

This Court concludes that, having alleged that Stephens’s failure to conform to sex

stereotypes was the driving force behind the Funeral Home’s decision to fire Stephens, the EEOC

has sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.

C. The Funeral Home’s Remaining Arguments Are Without Merit Or Are

Improperly Raised In A Motion To Dismiss Under Fed. R. Civ. P. 12(b)(6).

The Funeral Home’s Motion to Dismiss makes numerous arguments. As stated above,

this Court concludes that the EEOC has sufficiently pleaded a Title VII claim on behalf of

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Stephens. Below, the Court addresses challenges made by the Funeral Home that are not

encompassed in the above analysis.

1. The Funeral Home’s “Gender Identity Disorder” Arguments Are

Irrelevant. 

In the pending motion, the Funeral Home asserts that “[t]o the extent the EEOC’s claim is

that [Stephens] was terminated due to his gender identity disorder, the claim must be dismissed.” 

(Def.’s Br. at 11). In making this argument, the Funeral Home also asserts that Gender Identity

Disorder is not a protected class under Title VII. (Id. at 3). 

The EEOC’s complaint never uses the term Gender Identity Disorder; nor does it assert

that Gender Identity Disorder is a protected class under Title VII. Moreover, to the extent that

the EEOC asks this Court to rule that transgender status is a protected class under Title VII, this

Court declines to do so, as set forth in Section II. A. of this Opinion.

2. The Court Rejects The Funeral Home’s Ultra Vires Arguments.

The Funeral Home also asserts that “Title VII does not extend its protections to ‘gender

identity disorder’” and then takes the position that the EEOC’s prosecution of this case is an ultra

vires act. The Court rejects this argument. As stated above, the Court concludes that, having

alleged that Stephens’s failure to conform to sex stereotypes was the driving force behind the

Funeral Home’s decision to fire Stephens, the EEOC has sufficiently pleaded a sex-stereotyping

gender-discrimination claim under Title VII. 

3. The Funeral Home’s Defenses Based Upon Its Enforcement Of An

Alleged Dress Code Are Not Properly Before The Court On A Motion

Brought Under Fed. R. Civ. P. 12(b)(6).

In its motion, the Funeral Home also asserts that “the Complainant [Stephens] was

terminated for refusing to comply with the employer’s dress and grooming code” and therefore

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the claim fails. (Def.’s Br. at 19). It then cites cases that involved plaintiffs who filed suit

alleging that their employer’s dress codes violated Title VII. 

Here, however, the EEOC’s complaint does not assert any claims based upon a dress code

and it does not contain any allegations as to a dress code at the Funeral Home.

To the extent that the Funeral Home seeks to proffer a defense to the Title VII claim

asserted on behalf of Stephen based upon its alleged dress code, this Court agrees with the EEOC

that such a defense has no place in the context of a motion brought pursuant to Fed. R. Civ. P.

12(b)(6):

Essentially, Defendant is injecting a defense into a 12(b)(6) motion and

asking the court to accept the defense as true in order to find the complaint legally

deficient. This is not the proper use of a motion to challenge a complaint. As

noted above, a 12(b)(6) motion is not a vehicle “to resolv[e] . . . the applicability

of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.

1999). Instead, Rule 12(b)(6) by its terms provides for a defendant to move to

dismiss a complaint for “failure to state a claim upon which relief can be granted.”

(Pl.’s Br. at 14).3

CONCLUSION & ORDER

For the reasons set forth above, IT IS ORDERED that Defendant’s Motion to Dismiss is

DENIED.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: April 23, 2015

The Court also notes that although the Funeral Home makes assertions as to it having a 3

dress code, and assertions as to what it entails (see Def.’s Br. at 6-7), the Funeral Home did not

submit any evidence as to its purported dress code. Thus, even if the Court wished to convert

this motion to dismiss into a summary judgment motion, under Fed. R. Civ. P. 12(d), and

consider matters outside of the pleadings, there would be no basis for it to do so here. 

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

v. Case No. 14-13710

R.G. & G.R. Harris Funeral Homes, Inc., Sean F. Cox

United States District Court Judge

Defendant.

______________________________________/

PROOF OF SERVICE

I hereby certify that a copy of the foregoing document was served upon counsel of record 

on April 23, 2015, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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