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

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT R.G. & G.R. 

HARRIS FUNERAL HOMES, INC.’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 the Court should grant summary judgment to Defendant R.G. 

& G.R. Funeral Homes, Inc. (“R.G.”) on Plaintiff Equal Opportunity Employment 

Commission’s (the “EEOC”) Title VII claim on behalf of Charging Party Stephens, 

when the undisputed evidence demonstrates that R.G. dismissed Stephens because of 

Stephens’s stated intent to violate a sex-specific dress code that imposes equal 

burdens on the sexes.

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

Court to grant summary judgment to R.G. on the EEOC’s Title VII claim on behalf 

of Stephens, when the undisputed evidence shows that the EEOC seeks to compel 

R.G. (a closely held corporation) to violate its owner’s sincerely held religious beliefs.

3. Whether the Court should grant summary judgment to R.G. on the 

EEOC’s Title VII claim (on behalf of an unidentified group of women) that 

challenges R.G.’s manner of providing work clothes and clothing allowances to its 

employees, when the EEOC lacks authority to bring a claim of discrimination that is 

unrelated to Stephens (a biological male when employed by R.G.) and that involves a 

kind of discrimination (discrimination in the terms and conditions of employment)

different than that alleged by Stephens (discriminatory discharge), and when the 

undisputed evidence demonstrates that R.G. provides work clothes and clothing 

allowances that are equivalent for 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

Standard of Review ................................................................................................................ 2

Argument................................................................................................................................. 3

I. Stephens Was Not Unlawfully Dismissed Because of Sex in 

Violation of Title VII...................................................................................... 3

A. Stephens Must Be Considered a Male for Purposes of Title 

VII.......................................................................................................... 4

B. R.G.’s Enforcement of its Sex-Specific Dress Code Does 

Not Violate Title VII........................................................................... 5

1. Sex-Specific Dress Codes That Impose Equal 

Burdens on Men and Women Do Not Violate Title 

VII. ............................................................................................. 5

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

Unequal Burdens on Males and Females. ............................. 7

3. Neither Price Waterhouse nor Smith Invalidate R.G.’s 

Sex-Specific Dress Code.......................................................... 9

4. R.G.’s Dress Code Furthers Particular Business 

Needs in the Funeral Industry. ............................................. 12

II. RFRA Prohibits the EEOC from Compelling R.G. to Violate its 

Sincerely Held Religious Beliefs. ................................................................. 15

A. RFRA Protects R.G.’s Exercise of Religion. .................................. 15

B. Applying Title VII in this Case Would Substantially Burden 

R.G.’s Exercise of Religion............................................................... 18

C. The EEOC Cannot Demonstrate That Applying Title VII 

in this Case Would Satisfy Strict Scrutiny....................................... 19

III. The EEOC Cannot Prevail on its Clothing Allowance Claim on 

Behalf of a Class of Female Employees. .................................................... 21

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A. The EEOC Lacks Authority to Raise its Clothing 

Allowance Claim. ............................................................................... 21

B. The EEOC’s Clothing Allowance Claim Lacks Merit 

Because R.G. Does Not Discriminate Between Comparable 

Male and Female Employees............................................................ 24

Conclusion............................................................................................................................. 25

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Index of Authorities

Cases:

Barker v. Taft Broadcasting Co.,

549 F.2d 400 (6th Cir. 1977).................................................................................. 6, 9

Burwell v. Hobby Lobby Stores, Inc., 

134 S. Ct. 2751 (2014) ........................................................................... 16, 17, 19, 20

Christiansburg Garment Co. v. EEOC, 

434 U.S. 412 (1978)................................................................................................... 21

EEOC v. Bailey Co., 

563 F.2d 439 (6th Cir. 1977)........................................................................21, 22, 23

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

100 F. Supp. 3d 594 (E.D. Mich. 2015) ................................................................... 4

Fagan v. National Cash Register Co., 

481 F.2d 1115 (D.C. Cir. 1973)................................................................................. 5

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006)............................................................................................. 19, 20

Hamm v. Weyauwega Milk Products, Inc., 

332 F.3d 1058 (7th Cir. 2003).................................................................................. 14

Harper v. Blockbuster Entertainment Corp.,

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

Hollingsworth v. Perry, 

133 S. Ct. 2652 (2013) .............................................................................................. 23

Holt v. Hobbs, 

135 S. Ct. 853 (2015) ................................................................................................ 18

Humenny v. Genex Corp., 

390 F.3d 901 (6th Cir. 2004)...................................................................................... 3

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Jespersen v. Harrah’s Operating Co., 

444 F.3d 1104 (9th Cir. 2006)............................................................. 5, 6, 7, 8, 9, 11

Martin v. Ohio Turnpike Commission, 

968 F.2d 606 (6th Cir. 1992)...................................................................................... 2

McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973)..................................................................................................... 3

Nelson v. General Electric Co., 

2 F. App’x 425 (6th Cir. 2001)................................................................................. 23

Oncale v. Sundowner Offshore Services, Inc., 

523 U.S. 75 (1998)................................................................................................... 3, 4

Price Waterhouse v. Hopkins, 

490 U.S. 228 (1989).............................................................................. 4, 9, 10, 11, 12

Smith v. City of Salem, 

378 F.3d 566 (6th Cir. 2004)..........................................................................9, 10, 11

St. Mary’s Honor Center v. Hicks, 

509 U.S. 502 (1993)................................................................................................... 10

Thomas v. Review Board of the Indiana Employment Security Division,

450 U.S. 707 (1981)................................................................................................... 18

Thompson v. North American Stainless, LP, 

562 U.S. 170 (2011)................................................................................................... 23

Trafficante v. Metropolitan Life Insurance Co., 

409 U.S. 205 (1972)................................................................................................... 23

Vickers v. Fairfield Medical Center, 

453 F.3d 757 (6th Cir. 2006)...................................................................................... 3

White v. Baxter Healthcare Corp., 

533 F.3d 381 (6th Cir. 2008)................................................................................ 3, 10

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Constitutional Provisions, Statutes, and Rules:

Federal Rules of Civil Procedure, Rule 56........................................................................... 2

42 U.S.C. § 2000e-2.......................................................................................................... 3, 22

42 U.S.C. § 2000e-5.............................................................................................................. 23

42 U.S.C. § 2000bb-1 ..................................................................................................... 15, 19

Other Authorities:

EEOC Compliance Manual (June 2006)............................................................................. 7

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Introduction

Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”) and its owner 

Thomas Rost (“Rost”) walk alongside grieving family members and friends when their

loved ones pass away. Rost is a devout Christian who believes that God has called him 

to minister to these grieving families, and his faith informs the way he operates his 

business and how he presents his business to the public. 

Charging Party Stephens was employed by R.G. as a funeral director embalmer. 

In Stephens’s work as a funeral director, Stephens regularly interacted with the public, 

including grieving family members and friends. When Stephens, a biological male, 

informed Rost of an intention to begin wearing the female uniform for funeral 

directors, R.G. dismissed Stephens for refusing to comply with R.G.’s dress code. 

Plaintiff Equal Employment Opportunity Commission (the “EEOC”) claims 

that R.G. violated Title VII’s prohibition on sex discrimination when R.G. dismissed 

Stephens. This Court’s previous rulings have established that the EEOC is confined 

to arguing that R.G. engaged in unlawful sex stereotyping when it dismissed Stephens. 

Yet the undisputed evidence demonstrates that R.G. dismissed Stephens because 

Stephens stated an intent to violate a sex-specific dress code that imposes equal 

burdens on men and women. That decision had nothing to do with pernicious or 

illegitimate sex-based stereotypes. Consequently, as a matter of law, Stephens’s 

termination does not violate Title VII.

In addition, R.G. is entitled to summary judgment because the Religious 

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Freedom Restoration Act (“RFRA”) forbids the EEOC from applying Title VII to 

punish R.G. under the facts of this case. RFRA applies here because R.G. is a closely 

held corporation entirely controlled and majority-owned by Rost and because Rost 

operates R.G. consistent with his Christian faith. Rost sincerely believes that a 

person’s sex (whether male or female) is an immutable God-given gift, and that he 

would be violating his faith if he were to pay for and otherwise permit his funeral 

directors to dress as members of the opposite sex while at work. Compelling R.G. to 

allow its male funeral directors to wear the uniform prescribed for females would thus 

substantially burden R.G.’s exercise of religion. Because the government cannot 

satisfy strict scrutiny here, RFRA bars Title VII’s application in this case.

Finally, the Court should reject the EEOC’s claim that R.G. violates Title VII 

by allegedly failing to provide female employees work clothes or clothing allowances 

equivalent to those given to males. This is because the EEOC lacks authority to raise 

that claim and because the work clothes and clothing allowances that R.G. provides to 

its employees do not discriminate between comparable male and female employees.

Standard of Review

Summary judgment must be granted when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). Once the moving party carries its initial burden, 

the non-moving party may avoid summary judgment by “point[ing] to evidence in the 

record upon which a reasonable jury could find for it.” Martin v. Ohio Turnpike Comm’n, 

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968 F.2d 606, 608-09 (6th Cir. 1992) (citations omitted). 

Argument

I. Stephens Was Not Unlawfully Dismissed Because of Sex in Violation of 

Title VII. 

Title VII prohibits an employer from dismissing or otherwise taking adverse 

action against an employee “because of” the employee’s sex. 42 U.S.C. § 2000e-2(a)(1).

Plaintiffs generally rely on the indirect method of proof for Title VII cases in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that method, a plaintiff 

must establish the prima facie case by showing that “(1) he is a member of a protected 

class; (2) he was qualified for his job; (3) he suffered an adverse employment decision; 

and (4) he was replaced by a person outside the protected class or treated differently 

than similarly situated non-protected employees.” White v. Baxter Healthcare Corp., 533 

F.3d 381, 391 (6th Cir. 2008); accord Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th 

Cir. 2006). If the plaintiff establishes these elements, the burden of production shifts 

to the employer to articulate a legitimate, nondiscriminatory reason for its action. 

Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). If the employer provides 

such a reason, the plaintiff’s claim fails unless the plaintiff produces evidence that the 

proffered reason is a pretext for discrimination. Id. 

In Title VII sex-discrimination litigation, “[t]he critical issue . . . is whether 

members of one sex are exposed to disadvantageous terms or conditions of 

employment to which members of the other sex are not exposed.” Oncale v. Sundowner 

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Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Even though Stephens stated an intent to 

begin wearing the female uniform for funeral directors, Stephens was at all relevant 

times—from the time of Stephens’s hiring through discharge—a biological male. 

Consequently, to establish a prima facie case for sex discrimination, Stephens must 

show that R.G. treated Stephens less favorably than a similarly situated female 

employee or that Stephens was replaced with a female employee. The EEOC cannot 

make this showing because R.G. was simply enforcing its legitimate dress code for 

funeral directors when it dismissed Stephens. Accordingly, the EEOC cannot prove 

intent to discriminate against Stephens based on sex.

A. Stephens Must Be Considered a Male for Purposes of Title VII.

Ruling on R.G.’s Motion to Dismiss, this Court held that “transgender status is 

not a protected class under Title VII.” EEOC v. R.G. & G.R. Harris Funeral Homes, 

Inc., 100 F. Supp. 3d 594, 595 (E.D. Mich. 2015). This Court also “rejected the 

EEOC’s claim that R.G. violated Title VII by firing Stephens . . . because of 

Stephens’s transition from male to female.” Order Granting in Part and Denying in 

Part EEOC’s Motion for Protective Order at *2 (ECF No. 34). The EEOC is thus 

confined to arguing that R.G. discriminated against Stephens under the sexstereotyping theory set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Legal 

analysis under that theory must begin by identifying the plaintiff’s sex, which forms 

the basis of the alleged stereotyping. Because transgender status is not a protected 

class, the baseline for a sex-stereotyping claim must be a person’s biological sex.

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In this case, there is no dispute that during Stephens’s employment at R.G., 

Stephens was a biological male. Indeed, this fact is conclusively established in this 

proceeding. In its response to R.G.’s Requests for Admissions, the EEOC denied that 

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

on the basis of ‘sex’ has occurred under Title VII.” Pl.’s Resp. to Def.’s First Set of 

Discovery at Request for Admission No. 6 (Ex. 25) (emphasis added). 

Thus, Stephens must be treated as a male for purposes of Stephens’s Title VII 

claim. This conclusion has two consequences. First, any claim that Stephens was 

subjected to unlawful discrimination because Stephens is female must fail. Second, 

Stephens was subject to R.G.’s dress code for male funeral directors.

B. R.G.’s Enforcement of its Sex-Specific Dress Code Does Not 

Violate Title VII.

1. Sex-Specific Dress Codes That Impose Equal Burdens on 

Men and Women Do Not Violate Title VII.

Courts generally uphold sex-specific dress and grooming policies against Title 

VII challenges. See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir. 

2006) (en banc) (stating that the Ninth Circuit has “long recognized that companies 

may differentiate between men and women in appearance and grooming policies, and 

so have other circuits”); Fagan v. Nat’l Cash Register Co., 481 F.2d 1115, 1117 n.3 (D.C. 

Cir. 1973) (“[R]easonable regulations prescribing good grooming standards are not at 

all uncommon in the business world, indeed, taking account of basic differences in 

male and female physiques and common differences in customary dress of male and 

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female employees, it is not usually thought that there is unlawful discrimination 

‘because of sex.’”). This is particularly true when even though the challenged policy 

treats men and women differently, it does so without placing an unequal burden on 

one sex. 

In Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977), for example,

the Sixth Circuit held that a male employee who was discharged for failing to keep his 

hair short as required by his employer’s sex-specific grooming policy did not state a 

cause of action under Title VII for discrimination based on sex. The employer’s 

grooming policy “limited the manner in which the hair of the men could be cut and 

limited the manner in which the hair of women could be styled.” Id. In holding that 

the male plaintiff failed to make out a prima facie case of sex discrimination, the court 

observed that there was “no allegation that women employees who failed to comply 

with the code provisions relating to hair style were not discharged”; nor was there 

“any allegation that the employer refused to hire men who did not comply with the 

code, but did hire women who were not in compliance.” Id. In other words, the 

plaintiff did not state a claim for sex discrimination because he failed to allege that the 

employer’s grooming policy imposed an unequal burden on men.

Courts in other circuits have reached the same conclusion. In 2006, an en banc 

panel of the Ninth Circuit confronted a similar set of facts in Jespersen. There, the 

court considered whether Harrah’s Casino violated Title VII by requiring its

bartenders to conform to a dress and grooming policy that required female bartenders 

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to wear makeup and nail polish and to tease, curl, or style their hair, while prohibiting 

male bartenders from wearing makeup or nail polish and requiring them to keep their 

hair cut above the collar. Jespersen, 444 F.3d at 1107. The court noted that it has “long 

recognized that companies may differentiate between men and women in appearance 

and grooming policies.” Id. 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.” Id. 

(citation and quotation marks omitted). Because the female plaintiff failed to show 

that requiring women to wear makeup (and prohibiting men from doing so) imposed 

an unequal burden on women, the Ninth Circuit held that she could not establish her 

claim of sex discrimination. Id. at 1112; see also Harper v. Blockbuster Entm’t Corp., 139 

F.3d 1385, 1387 (11th Cir. 1998) (upholding sex-specific grooming policy); EEOC 

Compliance Manual § 619.4(d) (June 2006) (stating that sex-specific dress codes that 

“are suitable and are equally enforced and . . . are equivalent for men and women with 

respect to the standard or burden that they impose” do not violate Title VII).

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

Burdens on Males and Females.

Because R.G.’s dress code for funeral directors imposes equivalent burdens on 

men and women, the enforcement of the dress code against Stephens was not 

unlawful discrimination, and R.G. is entitled to judgment as a matter of law.

R.G.’s basic dress code is outlined in the company’s employee handbook. See 

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R.G. Employee Manual, EEOC002717-19 (Ex. 19). It is a sex-specific dress code that 

R.G. applies based on the biological sex of its employees. T. Rost Aff. ¶ 35 (Ex. 1). 

The dress code requires men who interact with the public to wear dark suits with 

nothing in the jacket pockets, white shirts, ties, dark socks, dark polished shoes, dark 

gloves, and only small pins. R.G. Employee Manual, EEOC002717-19 (Ex. 19).

Women who interact with the public must wear “a suit or a plain conservative dress” 

in muted colors. Id. The employees of R.G. understand that this requires those male 

employees to wear suits and ties and those female employees to wear skirts and 

business jackets. See Peterson Dep. 30:24-31:25, 32:3-8 (Ex. 11); Kish Dep. 17:8-16, 

58:5-11 (Ex. 5); Shaffer Dep. 52:12-22 (Ex. 12); Cash Dep. 23:1-4 (Ex. 8); Kowalewski 

Dep. 22:10-15 (Ex. 9); McKie Dep. 22:22-25 (Ex. 13); M. Rost Dep. 14:9-19 (Ex. 10). 

When analyzing the EEOC’s claim on behalf of Stephens, the relevant 

requirements of the dress code are those that apply to R.G.’s funeral directors because 

that is the position held by Stephens. See Jespersen, 444 F.3d at 1106-07 (focusing only 

on the dress code for the plaintiff’s position). R.G. employees understand that the 

dress code requires funeral directors to wear company-provided suits. See Kish Dep. 

17:8-22 (Ex. 5); Crawford Dep. 18:3-11 (Ex. 6). Although R.G. has not had an 

opportunity to employ a female funeral director since Rost’s grandmother stopped 

working for R.G. around 1950, see Stephens Dep. 102:4-14 (Ex. 14); T. Rost Aff. ¶ 52-

53 (Ex. 1), there is no dispute that R.G. would provide female funeral directors with 

skirt suits in the same manner that it provides pant suits to male funeral directors, and 

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that those female employees would be required to wear those suits while on the job.

Id. at ¶ 54. The burden on male funeral directors that must wear a company-issued 

suit is identical to the burden on female funeral directors that must wear companyissued suits for women.

Moreover, R.G. does not discriminate in its enforcement of the dress code. 

R.G. has in fact disciplined employees for failing to comply with the dress code, see 

Kish Dep. 54:1-16, 68:22-69:8 (Ex. 5); M. Rost Dep. 37:22-39:6 (Ex. 10), and no 

evidence indicates that R.G. has enforced it unevenly. Indeed, it is undisputed that if a 

female funeral director were to say that she planned to wear a men’s suit at work, that 

employee would be discharged just like Stephens was. T. Rost Aff. ¶ 55 (Ex. 1). In 

addition, neither R.G.’s dress code nor any other R.G. policy requires any employee to 

act in a masculine or feminine manner. Nor has R.G. ever disciplined an employee for 

failing to act in a stereotypically masculine or feminine way. 

The undisputed evidence thus demonstrates that R.G.’s dress code imposes 

equivalent burdens on male and female funeral directors. Consequently, the EEOC 

has failed to present an issue of triable fact, and R.G. is entitled to summary judgment.

3. Neither Price Waterhouse nor Smith Invalidate R.G.’s SexSpecific Dress Code.

The Supreme Court’s decision in Price Waterhouse and the Sixth Circuit’s holding 

in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), do not alter the widely accepted 

rule acknowledged in Barker and Jespersen that sex-specific dress and grooming codes 

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are lawful under Title VII when they impose equivalent burdens on men and women. 

In Smith, the Sixth Circuit held that a male firefighter’s Title VII complaint, which 

alleged that his employer took an adverse action against him because he “express[ed] 

less masculine, and more feminine mannerisms and appearance,” stated a claim upon 

which relief could be granted. 378 F.3d at 572. In Price Waterhouse, the Supreme Court 

held that the plaintiff’s employer violated Title VII by denying her a promotion 

because she was too “macho” and “aggressive” for a woman. 490 U.S. at 235-237, 

250-51, 256. In neither case did the plaintiffs refuse to comply with (or challenge) a 

sex-specific dress code or grooming policy that imposed equal burdens on the sexes.

The absence of such a policy is critical. An important question when resolving 

sex-discrimination claims is whether the employer treats employees of one sex better 

than employees of the other sex. White, 533 F.3d at 391. And “the ultimate question” 

is whether the employee “has proven that the defendant intentionally discriminated 

against him because of his [sex].” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 

(1993) (quotation marks and alterations omitted). An employer’s comments that a 

female employee is too “aggressive” or “macho” (as in Price Waterhouse, 490 U.S. at 

235, 256) or that a male employee is engaging in “non-masculine behavior” (as in 

Smith, 378 F.3d at 570) show an intent to single out and discriminate against that 

employee because of his or her sex. But when an employer is simply enforcing a dress 

code that places equal burdens on the sexes and that applies to all employees in the 

same position, that does not demonstrate an intent to treat women worse than men

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(or vice versa). See Jesperson, 444 F.3d at 1111-12 (“The [sex-specific dress and 

grooming] policy does not single out Jespersen. It applies to all of the [employees in 

her position], male and female.”). Indeed, unlike the employers in Price Waterhouse or

Smith, R.G. never indicated that Stephens’s behavior was too feminine or not 

masculine enough. R.G. simply maintained that Stephens, like all other employees, 

whether male or female, must comply with the dress code. Thus, the EEOC (on 

behalf of Stephens) cannot show what the plaintiff in Price Waterhouse could (and what 

the plaintiff in Smith alleged)—that R.G. treated Stephens differently from other 

employees because of Stephens’s sex. 

As the Ninth Circuit has noted, the plaintiff in Price Waterhouse established 

impermissible sex-based discrimination because “the very traits that [the female 

plaintiff] was asked to hide”—primarily her aggressiveness—“were the same traits 

considered praiseworthy in men.” Jespersen, 444 F.3d at 1111 (emphasis added). Indeed, the

Court in Price Waterhouse explained that “[a]n employer who objects to aggressiveness 

in women but whose positions require this trait places women in an intolerable and 

impermissible catch 22: out of a job if they behave aggressively and out of a job if 

they do not.” 490 U.S. at 251 In other words, by insisting that female employees 

conduct themselves in a stereotypically feminine fashion, Price Waterhouse impeded 

those employees’ ability to perform their jobs and advance their careers. That is why 

the sex stereotyping in Price Waterhouse established unlawful discrimination.

But this case is very different. It is instead like Jesperson, where the plaintiff tried 

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to use Price Waterhouse to invalidate a sex-specific dress and grooming policy that 

imposed equal burdens on the sexes. But the Ninth Circuit rejected the plaintiff’s

argument, concluding that “Jespersen’s claim . . . materially differs from [the plaintiff’s] 

claim in Price Waterhouse because Harrah’s grooming standards do not require 

Jespersen to conform to a stereotypical image that would objectively impede her 

ability to perform her job requirements as a bartender.” 444 F.3d at 1113. 

Similarly here, “[t]he record contains nothing to suggest [that R.G.’s dress] 

standards would objectively inhibit” one sex’s “ability to do the job.” Id. at 1112. 

R.G.’s dress code does not require Stephens to conform to a sex stereotype that 

would impede Stephens’s ability to perform the duties of a funeral director. On the 

contrary, as discussed below, R.G. implemented its dress code to further its unique 

work as a funeral business catering to the needs of its customers. Thus, far from 

impeding Stephens’s ability to perform the requirements of the job, R.G.’s dress code 

enabled Stephens to do the job well.

4. R.G.’s Dress Code Furthers Particular Business Needs in the 

Funeral Industry.

R.G.’s dress code is driven by the unique nature of the funeral industry, which 

requires utmost sensitivity to the needs of grieving families—including the need for an 

environment free from distraction. See T. Rost Aff. ¶ 34 (Ex. 1) (“Maintaining a 

professional dress code that is not distracting to grieving families is an essential 

industry requirement that furthers their healing process.”); T. Rost 30(b)(6) Dep. 

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59:13-60:5 (Ex. 4) (explaining that R.G. instituted its dress code because grieving 

families and friends that come to R.G. deserve “an environment where they can begin 

the grieving process and the healing process,” and noting that clients “don’t need 

some type of a distraction . . . for them and their family”); Stephens Dep. 91:22-92:9 

(Ex. 14) (testifying that professional attire is particularly important in the funeral 

industry given that “the funeral business is a somber one . . . because somebody has 

died, and people are . . . mourning the loss”). The dress code ensures that R.G.’s 

“staff is . . . dressed in a professional manner that’s acceptable to the families that 

[R.G.] serve[s].” T. Rost Dep. 49:22-50:15 (Ex. 3); see also T. Rost 30(b)(6) Dep. 57:20-

58:6 (Ex. 4) (testifying that the “dress code conforms to what is acceptable attire in a 

professional manner for the services that [R.G.] provide[s]”).

The sex-specific nature of the dress code is also rooted in the business need for 

professionalism and the absence of distraction. The dress code forbids male funeral 

directors from wearing the female uniform because allowing them to do that would 

attract undue attention to themselves and disrupt the grieving process for the clients. 

T. Rost Aff. ¶ 37 (Ex. 1). Indeed, Stephens himself, while owner of a funeral business, 

required male employees to wear a coat and tie and required the only female employee 

to wear a ladies’ “business-type dress,” described as “[a] ladies’ blue jacket.” Stephens 

Dep. 36:1-23 (Ex. 14).

Professional dress takes on heightened significance for funeral directors like 

Stephens because they often deal directly with grieving family members. For example, 

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funeral directors regularly interact with families throughout the funeral process. Cash 

Dep. 27:13-28:9 (Ex. 8); Crawford Dep. 14:8-18 (Ex. 6); T. Rost Aff. ¶¶ 16-31 (Ex. 1).

Funeral directors also perform sensitive duties like removing the body of the deceased 

from the family—a particularly distressing experience for family members. T. Rost 

Aff. ¶¶ 14-15 (Ex. 1). Rost believes that allowing a male funeral director to dress as a 

female would distract R.G.’s clients mourning the loss of their loved ones, disrupt 

their healing process, and harm R.G.’s clients and business. Id. at ¶¶ 36-40.

These uncontested facts demonstrate that R.G.’s dress code and its decision to 

dismiss Stephens were motivated by legitimate business needs and the interests of the 

grieving people that R.G. serves. Thus, neither R.G.’s dress code nor Stephens’s 

discharge violates Title VII’s prohibition on sex discrimination. 

R.G. must emphasize one concluding point about the EEOC’s sex-stereotyping 

argument: accepting that argument would make it impossible for a company to 

enforce sex-specific dress or grooming requirements, even if they impose equal 

burdens on the sexes. Not only would this contravene the well-established Title VII 

case law that affirms those sorts of sex-specific policies, it would also override 

employers’ freedom to determine how their businesses will present themselves to the 

public and would jeopardize their success in the marketplace. As Judge Posner has 

observed, sex-stereotyping case law does not create “a federally protected right for 

male workers to wear nail polish and dresses . . . , or for female ditchdiggers to strip to 

the waist in hot weather.” Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 

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(7th Cir. 2003) (Posner, J., concurring). If it did, Title VII would require employers 

with legitimate sex-specific dress and grooming policies to allow an employee to dress 

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

female uniform whenever that employee chooses. Congress surely did not have this in 

mind when it added sex as a protected classification in Title VII.

II. RFRA Prohibits the EEOC from Compelling R.G. to Violate its Sincerely 

Held Religious Beliefs.

RFRA provides that the government “shall not substantially burden a person’s 

exercise of religion.” 42 U.S.C. § 2000bb-1(a). The only exception to this rule is if the 

government “demonstrates that application of the burden to the person—(1) is in 

furtherance of a compelling governmental interest; and (2) is the least restrictive 

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). 

The EEOC’s attempt to apply Title VII under these circumstances would 

substantially burden R.G.’s exercise of religion by, among other things, forcing R.G. 

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

immutable God-given gift and that R.G. cannot pay for or otherwise permit one of its 

male funeral directors to wear the female uniform at work. Because the EEOC cannot 

demonstrate that forcing R.G. to violate its faith in this way would satisfy strict 

scrutiny, RFRA prohibits the EEOC’s attempt to apply Title VII here.

A. RFRA Protects R.G.’s Exercise of Religion.

RFRA applies to “a person’s” exercise of religion. 42 U.S.C. §§ 2000bb-1(a), (b). 

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This includes closely held for-profit corporations like R.G., 94.5 percent of which is 

owned by Rost, its sole officer and chief executive, with the remaining 5.5 percent 

split between Rost’s two children. See T. Rost 30(b)(6) Dep. 26:20-28:25, 78:2-9 (Ex. 

4); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768-69 (2014) (concluding that 

“persons” protected by RFRA include closely held for-profit corporations). 

Moreover, R.G. exercises religion through the work that it performs. As the 

Supreme Court explained in Hobby Lobby: “[T]he exercise of religion involves not only 

belief and profession but the performance of (or abstention from) physical acts that 

are engaged in for religious reasons. Business practices that are compelled or limited 

by the tenets of a religious doctrine fall comfortably within that definition.” Id. at 2770 

(quotation marks and citation omitted). 

Rost has been a Christian for over sixty-five years. T. Rost 30(b)(6) Dep. 30:13-

22 (Ex. 4). His faith informs the way he operates his business, id. at 86:20-22, 87:3-24, 

which includes hosting funeral services of deep spiritual significance to many, see id. at 

32:3-13; T. Rost Aff. ¶¶ 10, 20, 26, 30 (Ex. 1). R.G.’s mission statement, which is 

posted on its website with a Scripture verse, reflects the business’s religious purposes: 

R.G. & G.R. Harris Funeral Homes recognize that its highest priority is 

to honor God in all that we do as a company and as individuals. With 

respect, dignity, and personal attention, our team of caring professionals 

strive to exceed expectations, offering options and assistance designed to 

facilitate healing and wholeness in serving the personal needs of family 

and friends as they experience a loss of life.

R.G. Webpage (Ex. 15). Long-time employees and managers agree that R.G. is 

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operated according to Rost’s religious convictions. Cash Dep. 8:25-9:25, 46:5-18 (Ex. 

8) (testifying that he considers R.G. to be a Christian business); Kowalewski Dep. 

29:8-10 (Ex. 9) (testifying that he considers R.G. to be a Christian business).

R.G. is a tangible expression of Rost’s deeply felt religious calling to care for 

and minister to the grieving. See T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4) (testifying that 

he considers his business to be a ministry to grieving families); T. Rost Aff. ¶ 10 (Ex. 

1). Rost describes the ministry of R.G. as one of healing and giving comfort—to help 

families on the “worst day of their lives” and “meet their emotional, relational and 

spiritual needs . . . in a religious way.” T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4). In 

addition to the spiritual and emotional care involved in his ministry, Rost ensures that 

all customers have access to spiritual guidance by placing throughout his funeral 

homes Christian devotional booklets entitled “Our Daily Bread” and small cards with 

Bible verses on them called “Jesus Cards,” and by making a Bible available to visitors 

at all his funeral homes. Id. at 39:23-40:17; Nemeth Dep. 27:13-28:2 (Ex. 7); Cash Dep. 

47:17-24 (Ex. 8); Kowalewski Dep. 31:17-32:21, 33:5-22 (Ex. 9); M. Rost Dep. 28:20-

29:19 (Ex. 10); Peterson Dep. 28:18-30:12 (Ex. 11). 

Viewing all this evidence of R.G.’s religious exercise in the light of Hobby Lobby,

this Court should conclude that RFRA’s protections apply here. Indeed, just as the 

businesses in Hobby Lobby exercised religion by operating “in [a] manner that reflects 

[their] Christian heritage,” Hobby Lobby, 134 S. Ct. at 2770 n.23, R.G. exercises religion 

by, as its mission statement says, upholding as “its highest priority” the need “to 

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honor God in all that we do as a company.” R.G. Webpage (Ex. 15).

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

Exercise of Religion.

The EEOC’s attempt to apply Title VII here would substantially burden Rost’s 

exercise of religion. A substantial burden exists where the government requires a 

person “to engage in conduct that seriously violates [his] religious beliefs,” Holt v. 

Hobbs, 135 S. Ct. 853, 862 (2015) (quotation marks omitted), or where it “put[s]

substantial pressure on an adherent . . . to violate his beliefs,” Thomas v. Rev. Bd. of the 

Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). Rost sincerely believes that a person’s 

sex (whether male or female) is an immutable God-given gift and that it is wrong for a 

person to deny his or her God-given sex. T. Rost Aff. ¶¶ 41-42 (Ex. 1). He also 

sincerely believes that he would violate his faith if he were to pay for or otherwise 

allow one of his funeral directors to wear the uniform for members of the opposite 

sex while at work. T. Rost Aff. ¶¶ 43-46 (Ex. 1). Thus, compelling R.G. to allow 

Stephens to wear the uniform for female funeral directors at work would impose a 

substantial burden on R.G.’s free exercise of religion by compelling Rost to engage in 

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

Moreover, requiring R.G. to permit a male funeral director to wear the uniform 

for female funeral directors would interfere with R.G.’s ability to carry out Rost’s

religious mission to care for the grieving. See T. Rost 30(b)(6) Dep. 59:8-12, 69:25-70:6 

(Ex. 4). This is because allowing a funeral director to wear the uniform for members 

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

thereby hinder their healing process. Id. at 54:8-17, 59:13-60:9; T. Rost Aff. ¶¶ 36-38 

(Ex. 1). And 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. T. Rost 

Aff. ¶ 48 (Ex. 1). Thus, applying Title VII in this case would substantially burden 

R.G.’s and Rost’s religious exercise of caring for the grieving. 

C. The EEOC Cannot Demonstrate That Applying Title VII in this 

Case Would Satisfy Strict Scrutiny.

Having established a substantial burden on religious exercise, the burden shifts 

to the government to satisfy strict scrutiny. 42 U.S.C. § 2000bb-1(b). RFRA requires 

that the EEOC “demonstrat[e] that application of [a substantial] burden to the 

person . . . is the least restrictive means of furthering” a compelling government 

interest. Id. This is an “exceptionally demanding” standard, requiring the government 

to “show[] that it lacks other means of achieving its desired goal without imposing a 

substantial burden on the exercise of religion by the objecting parties.” Hobby Lobby, 

134 S. Ct. at 2780. The EEOC cannot make the required showing.

To begin with, the EEOC cannot demonstrate a compelling interest here. 

RFRA’s strict-scrutiny test “look[s] beyond broadly formulated interests justifying the 

general applicability of government mandates,” and instead scrutinizes the specific 

interest in applying the law to the party before the court and “the asserted harm of 

granting specific exemptions to [that party].” Gonzales v. O Centro Espirita Beneficente 

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Uniao do Vegetal, 546 U.S. 418, 430-31 (2006); see also Hobby Lobby, 134 S. Ct. at 2779. 

Thus, the relevant government interest is not a generic interest in opposing 

discrimination, but the specific interest in forcing R.G. to allow its male funeral 

directors to wear the uniform for female funeral directors while on the job. Yet the 

EEOC has no compelling interest in mandating that.

Notably, this case does not involve discriminatory animus against any person or 

class of persons. R.G. dismissed Stephens because Stephens would no longer comply 

with the dress code. R.G. was not motivated by animus against people who dress as 

members of the opposite sex. Indeed, 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. T. Rost Aff. ¶¶ 50-51 (Ex. 

1); T. Rost 30(b)(6) Dep. 137:11-15 (Ex. 4). Moreover, the uncontested evidence 

demonstrates that R.G.’s dress code and its enforcement of the dress code against 

Stephens are based on R.G.’s legitimate interest in ensuring that mourners have a 

space free of disruptions to begin the healing process after the loss of a loved one. T. 

Rost 30(b)(6) Dep. 139:5-23 (Ex. 4); T. Rost Aff. ¶¶ 36-39 (Ex. 1). Consequently, 

applying Title VII here would not further a compelling government interest. 

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

number of available alternatives would allow the government to achieve its goals 

without violating R.G.’s free-exercise rights. For example, the government could 

continue to enforce Title VII in most situations, but permit businesses in industries 

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that serve distressed people in emotionally difficult situations to require that its public 

representatives comply with the dress code at work. Alternatively, the government 

could prohibit employers from discharging employees simply because they dress 

inconsistently with their biological sex outside of work, while allowing employers to 

dismiss employees who refuse to wear sex-specific uniforms on the job. Because these 

alternatives (and others) are available, the EEOC cannot meet RFRA’s least-restrictive 

means requirement and thus cannot satisfy strict scrutiny.

III. The EEOC Cannot Prevail on its Clothing Allowance Claim on Behalf of 

a Class of Female Employees.

The EEOC’s complaint seeks relief on behalf of “a class of female employees” 

that were supposedly deprived of work clothes or clothing allowances that R.G. 

allegedly provides to male employees. Am. Compl. ¶¶ 17-18 (ECF No. 21). R.G. is 

also entitled to summary judgment on this “clothing allowance” claim.

A. The EEOC Lacks Authority to Raise its Clothing Allowance Claim.

The EEOC may include in a Title VII suit only claims that fall within an 

“investigation reasonably expected to grow out of the [complainant’s] charge of 

discrimination.” EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977), disapproved of on 

other grounds by Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). The Sixth 

Circuit has held that a claim falls outside that scope if (1) the claim is “unrelated to 

[the charging] party” and (2) it involves discrimination “of a kind other than that 

raised by [the charging party].” Id. at 448. These two considerations show that the 

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EEOC’s clothing allowance claim does not result from an investigation reasonably 

expected to grow out of Stephens’s charge of discrimination, which alleged unlawful 

“discharge[] due to [Stephens’s] sex and gender identity.” Charge of Discrimination, 

EEOC002748 (Ex. 21). 

First, the EEOC’s clothing allowance claim on behalf of a class of women is 

unrelated to Stephens. As previously discussed, Stephens was a biological male while 

employed at R.G. See T. Rost Dep. 21:1-25 (Ex. 3); Def.’s Resp. to Charge at 4-5, 

EEOC002744-45 (Ex. 22); Kish Dep. 67:9-68:21 (Ex. 5). And there is no dispute that 

Stephens received, accepted, and wore the men’s clothing provided by R.G. See

Stephens Dep. 59:14-60:1 (Ex. 14); Pl.’s Resp. to Def.’s First Set of Discovery at 

Request for Admission No. 2 (Ex. 25). Thus, an allegation concerning work clothes or 

an allowance not provided to a class of females is simply not related to Stephens. 

Second, the clothing allowance claim alleges discrimination of a kind other than 

that raised by Stephens. In the EEOC charge, Stephens alleged a discriminatory 

“discharge[].” Charge of Discrimination, EEOC002748 (Ex. 21). Stephens did not 

mention anything about inequality in the clothing or clothing allowance provided by 

R.G. Id. A claim that asserts “discriminat[ion] . . . with respect to . . . compensation, 

terms, conditions, or privileges of employment” (as the clothing allowance claim does) 

is of a different kind than a claim that alleges discriminatory “discharge.” 42 U.S.C. § 

2000e-2(a)(1); see Bailey Co., 563 F.2d at 451 (rejecting “the belief that all forms of 

unlawful employment discrimination . . . whether involving hiring, discharge, 

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promotion, or compensation are like or related”); Nelson v. Gen. Elec. Co., 2 F. App’x 

425, 428 (6th Cir. 2001) (unpublished) (finding that “the scope of the investigation 

reasonably expected to grow out of [an] EEOC charge” that alleged unlawful 

discharge did not include failure to promote). Moreover, a claim of discrimination 

against a class of women (which the clothing allowance claim is) is separate and 

distinct from a claim of discrimination against a biological man (which is all Stephens 

could validly raise in an EEOC charge). 

Nor could Stephens have included the clothing allowance claim in an EEOC 

charge because, as a biological male, Stephens was not “aggrieved” by a clothing 

policy that supposedly disfavors women. See 42 U.S.C. § 2000e-5(b) (noting that 

EEOC charges are filed by “person[s] claiming to be aggrieved”). While older case law 

called for a broad reading of what it means to be an “aggrieved” person under other 

federal statutes, see Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972), the 

Supreme Court has mandated a narrower reading of that language in Title VII, see

Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176-77 (2011) (rejecting Trafficante in 

the Title VII context). Therefore, just as Article III standing principles generally 

forbid a person from raising the “rights or interests of third parties,” Hollingsworth v. 

Perry, 133 S. Ct. 2652, 2663 (2013), so does Title VII’s aggrieved person standard, see 

Thompson, 562 U.S. at 177 (concluding that “the term ‘aggrieved’ [in Title VII] must be 

construed more narrowly than the outer boundaries of Article III”). Consequently, a 

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biological male could not raise the legal interests of a class of female employees at 

R.G. 

B. The EEOC’s Clothing Allowance Claim Lacks Merit Because R.G. 

Does Not Discriminate Between Comparable Male and Female 

Employees.

The EEOC’s claim that work clothes or clothing allowances were provided to 

male employees but not to a class of female employees also fails on its merits. To the 

extent that the class of employees the EEOC references is R.G.’s funeral directors—

the position that Stephens held—the EEOC has failed to show disparate treatment. 

Indeed, R.G. provides suits for all funeral directors. See T. Rost Dep. 13:4-14, 47:23-

48:11 (Ex. 3); Kish Dep. 64:12-24 (Ex. 5); McKie Dep. 38:19-23 (Ex. 13); Def.’s Resp. 

to Pl.’s Second Set of Discovery at Interrogatory No. 14 (Ex. 28). Although R.G. has 

not employed a female funeral director since Rost became the owner (notably, a 

qualified woman has not applied for an open funeral-director position during that 

time, see T. Rost Aff ¶¶ 52-53 (Ex. 1)), it is undisputed that R.G. would provide female 

funeral directors with a women’s suit of equal quality and value to the men’s suit 

provided to male funeral directors. Id. at ¶ 54.

Nor can the EEOC establish sex discrimination with respect to the clothes and 

clothing allowances that R.G. provides to employees in positions other than funeral 

director. Male employees who interact with the public in positions other than funeral 

director (all of whom are part-time) receive one suit from R.G. that is replaced by R.G. 

when it is no longer serviceable. See T. Rost Aff. ¶ 57 (Ex. 1) And female employees 

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who interact with the public in positions other than funeral director receive an annual 

clothing allowance of $150 for full-time employees and $75 for part-time employees. 

T. Rost Dep. 15:16-16:4 (Ex. 3); Nemeth Dep. 13:5-23 (Ex. 7); Kish Dep. 20:16-25

(Ex. 5). This allowance is sufficient to purchase an outfit that conforms to R.G.’s 

dress code for those positions and to cover the cost of replacing those outfits when 

they wear out. See Kish Aff. ¶¶ 5-7 (Ex. 2). Accordingly, regardless of the sex of the 

employees in those positions, R.G. provides them with clothing or resources to 

purchase dress code-complying clothing. Finally, no clothes or clothing allowance is 

provided for employees, whether male or female, in positions that do not interact with 

the public. See Kish Dep. 56:14-58:4, 65:17-66:18 (Ex. 5). The EEOC thus cannot 

prevail on its clothing allowance claim because it is unable to show that R.G. 

discriminates between comparable male and female employees.

Conclusion

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

summary judgment in its favor.

Dated: April 7, 2016

Respectfully submitted, 

 /s/ James A. Campbell

James A. Campbell

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