EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, AIMEE STEPHENS, Intervenor, v. R.G. &. G.R. Harris Funeral Homes, Inc., Defendant-Appellee.
No. 16-2424
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 7, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 18a0045p.06. Argued: October 4, 2017. Before: MOORE, WHITE, and DONALD, Circuit Judges.
COUNSEL
ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, for Intervenor. Douglas G. Wardlow, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. ON BRIEF: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, Jay D. Kaplan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Intervenor. Douglas G. Wardlow, Gary S. McCaleb, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. Jennifer C. Pizer, Nancy C. Marcus, LAMBDA LEGAL DEFENSE AND
OPINION
KAREN NELSON MOORE, Circuit Judge. Aimee Stephens (formerly known as Anthony Stephens) was born biologically male.1 While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. (“the Funeral Home“), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed a complaint with the Equal Employment Opportunity Commission (“EEOC“), which investigated Stephens‘s allegations that she had been terminated as a result of unlawful sex discrimination. During the course of its investigation, the EEOC learned that the Funeral Home provided its male public-facing employees with clothing that complied with the company‘s dress code while female public-facing employees received no such allowance. The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 (“Title VII“) by (1) terminating Stephens‘s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.
The district court granted summary judgment in favor of the Funeral Home on both claims. For the reasons set forth below, we hold that (1) the Funeral Home engaged in unlawful discrimination against Stephens on the basis of her sex; (2) the Funeral Home has not established that applying Title VII‘s proscriptions against sex discrimination to the Funeral Home would substantially burden Rost‘s religious exercise, and therefore the Funeral Home is not entitled to a defense under RFRA; (3) even if Rost‘s religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government‘s compelling interest in eradicating workplace discrimination against Stephens; and (4) the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home‘s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Stephens submitted to the EEOC. Accordingly, we REVERSE the district court‘s grant of summary judgment on both the unlawful-termination and discriminatory-clothing-allowance claims, GRANT summary judgment to the EEOC on its unlawful-termination claim, and REMAND the case to the district court for further proceedings consistent with this opinion.
Aimee Stephens, a transgender woman who was “assigned male at birth,” joined the Funeral Home as an apprentice on October 1, 2007 and served as a Funeral Director/Embalmer at the Funeral Home from April 2008 until August 2013. R. 51-18 (Stephens Dep. at 49–51) (Page ID #817); R. 61 (Def.‘s Counter Statement of Disputed Facts ¶ 10) (Page ID #1828). During the course of her employment at the Funeral Home, Stephens presented as a man and used her then-legal name, William Anthony Beasley Stephens. R. 51-18 (Stephens Dep. at 47) (Page ID #816); R. 61 (Def.‘s Counter Statement of Disputed Facts ¶ 15) (Page ID #1829).
The Funeral Home is a closely held for-profit corporation. R. 55 (Def.‘s Statement of Facts ¶ 1) (Page ID #1683).2 Thomas Rost (“Rost“), who has been a Christian for over sixty-five years, owns 95.4% of the company and operates its three funeral home locations. Id. ¶¶ 4, 8, 17 (Page ID #1684–85); R. 54-2 (Rost Aff. ¶ 2) (Page ID #1326). Rost proclaims “that God has called him to serve grieving people” and “that his purpose in life is to minister to the grieving.” R. 55 (Def.‘s Statement of Facts ¶ 31) (Page ID #1688). To that end, the Funeral Home‘s website contains a mission statement that states that the Funeral Home‘s “highest priority is to honor God in all that we do as a company and as individuals” and includes a verse of scripture on the bottom of the mission statement webpage. Id. ¶¶ 21–22 (Page ID #1686). The Funeral Home itself, however, is not affiliated with a church; it does not claim to have a religious purpose in its articles of incorporation; it is open every day, including Christian holidays; and it serves clients of all faiths. R. 61 (Def.‘s Counter Statement of Facts ¶¶ 25–27; 29–30) (Page ID #1832-34). “Employees have worn Jewish head coverings when holding a Jewish funeral service.” Id. ¶ 31 (Page ID #1834). Although the Funeral Home places the Bible, “Daily Bread” devotionals, and “Jesus Cards” in public places within the funeral homes, the Funeral Home does not decorate its rooms with “visible religious figures . . . to avoid offending people of different religions.” Id. ¶¶ 33–34 (Page ID #1834). Rost hires employees belonging to any faith or no faith to work at the Funeral Home, and he “does not endorse or consider himself to endorse his employees’ beliefs or non-employment-related activities.” Id. ¶¶ 37–38 (Page ID #1835).
Until October 2014—after the EEOC filed this suit—the Funeral Home did not provide its female employees with any sort of clothing or clothing allowance. Id. ¶ 54 (Page ID #1838–39). Beginning in October 2014, the Funeral Home began providing its public-facing female employees with an annual clothing stipend ranging from $75 for part-time employees to $150 for full-time employees. Id. ¶ 54 (Page ID #1838–39). Rost contends that the Funeral Home would provide suits to all funeral directors, regardless of their sex, id., but it has not employed a female funeral director since Rost‘s grandmother ceased working for the organization around 1950, R. 54-2 (Rost Aff. ¶¶ 52, 54) (Page ID #1336–37). According to Rost, the Funeral Home has received only one application from a woman for a funeral director position in the thirty-five years that Rost has operated the Funeral Home, and the female applicant was deemed not qualified. Id. ¶¶ 2, 53 (Page ID #1326, 1336).
On July 31, 2013, Stephens provided Rost with a letter stating that she has struggled with “a gender identity disorder” her “entire life,” and informing Rost that she has “decided to become the person that [her] mind already is.” R. 51-2 (Stephens Letter at 1) (Page ID #643). The letter stated that Stephens “intend[ed] to have sex reassignment surgery,” and explained that “[t]he first step [she] must take is to live and work full-time as a woman for one year.” Id. To that end, Stephens stated that she would return from her vacation on August 26, 2013, “as [her] true self, Amiee [sic] Australia Stephens, in appropriate business attire.” Id. After presenting the letter to Rost, Stephens postponed her vacation and continued to work for the next two weeks. R. 68 (Reply to Def.‘s Counter Statement of Material Facts Not in Dispute at 1) (Page ID #2122). Then, just before Stephens left for her intended vacation, Rost fired her. R. 61 (Def.‘s Counter Statement of Disputed Facts ¶¶ 10–11) (Page ID #1828). Rost said, “this is not going to
Rost avers that he “sincerely believe[s] that the Bible teaches that a person‘s sex is an immutable God-given gift,” and that he would be “violating God‘s commands if [he] were to permit one of [the Funeral Home‘s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the Funeral Home‘s] male funeral directors to wear the uniform for female funeral directors while at work.” R. 54-2 (Rost Aff. ¶¶ 42-43, 45) (Page ID #1334–35). In particular, Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Id. ¶¶ 43, 45 (Page ID #1334–35).
After her employment was terminated, Stephens filed a sex-discrimination charge with the EEOC, alleging that “[t]he only explanation” she received from “management” for her termination was that “the public would [not] be accepting of [her] transition.” R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). She further noted that throughout her “entire employment” at the Funeral Home, there were “no other female Funeral Director/Embalmers.” Id. During the course of investigating Stephens‘s allegations, the EEOC learned from another employee that the Funeral Home did not provide its public-facing female employees with suits or a clothing stipend. R. 54-24 (Memo for File at 9) (Page ID #1513).
The EEOC issued a letter of determination on June 5, 2014, in which the EEOC stated that there was reasonable cause to believe that the Funeral Home “discharged [Stephens] due to her sex and gender identity, female, in violation of Title VII” and “discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII.” R. 63-4 (Determination at 1) (Page ID #1968). The EEOC and the Funeral Home were unable to resolve this dispute through an informal conciliation
The Funeral Home moved to dismiss the EEOC‘s action for failure to state a claim. The district court denied the Funeral Home‘s motion, but it narrowed the basis upon which the EEOC could pursue its unlawful-termination claim. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 599, 603 (E.D. Mich. 2015). In particular, the district court agreed with the Funeral Home that transgender status is not a protected trait under Title VII, and therefore held that the EEOC could not sue for alleged discrimination against Stephens based solely on her transgender and/or transitioning status. See id. at 598–99. Nevertheless, the district court determined that the EEOC had adequately stated a claim for discrimination against Stephens based on the claim that she was fired because of her failure to conform to the Funeral Home‘s “sex- or gender-based preferences, expectations, or stereotypes.” Id. at 599 (quoting R. 1 (Compl. ¶ 15) (Page ID #4–5)).
The parties then cross-moved for summary judgment. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 840 (E.D. Mich. 2016). With regard to the Funeral Home‘s decision to terminate Stephens‘s employment, the district court determined that there was “direct evidence to support a claim of employment discrimination” against Stephens on the basis of her sex, in violation of Title VII. Id. at 850. However, the court nevertheless found in the Funeral Home‘s favor because it concluded that the Religious Freedom Restoration Act (“RFRA“) precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden Rost and the Funeral Home‘s religious exercise and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home.” Id. at 862–63. Based on its narrow conception of the EEOC‘s compelling interest in bringing the claim, the district court concluded that the EEOC could have achieved its goals by proposing that the Funeral Home impose a gender-neutral dress code. Id. The EEOC‘s failure to consider such an accommodation was, according to the district court, fatal to its case. Id. at 863. Separately, the district court held that it lacked jurisdiction to consider the EEOC‘s discriminatory-clothing-
Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephens‘s interests in this case. See D.E. 19 (Mot. to Intervene as Plaintiff-Appellant at 5-7). The Funeral Home opposed Stephens‘s motion on the grounds that the motion was untimely and Stephens had failed to show that the EEOC would not represent her interests adequately. D.E. 21 (Mem. in Opp‘n at 2–11). We determined that Stephens‘s request was timely given that she previously “had no reason to question whether the EEOC would continue to adequately represent her interests” and granted Stephens‘s motion to intervene on March 27, 2017. D.E. 28-2 (Order at 2). We further determined that Stephens‘s intervention would not prejudice the Funeral Home because Stephens stated in her briefing that she did not intend to raise new issues. Id. Six groups of amici curiae also submitted briefing in this case.
II. DISCUSSION
A. Standard of Review
“We review a district court‘s grant of summary judgment de novo.” Risch v. Royal Oak Police Dep‘t, 581 F.3d 383, 390 (6th Cir. 2009) (quoting CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008)). Summary judgment is warranted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Title VII prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.”
Here, the district court correctly determined that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 850 (“[W]hile this Court does not often see cases where there is direct evidence to support a claim of employment discrimination, it appears to exist here.“). The district court erred, however, in finding that Stephens could not alternatively pursue a claim that she was discriminated against on the basis of her transgender and transitioning status. Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.
1. Discrimination on the Basis of Sex Stereotypes
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality of the Supreme Court explained that Title VII‘s proscription of discrimination “‘because of . . . sex’ . . . mean[s] that gender must be irrelevant to employment decisions.” Id. at 240 (emphasis in original).
Based on Price Waterhouse, we determined that “discrimination based on a failure to conform to stereotypical gender norms” was no less prohibited under Title VII than discrimination based on “the biological differences between men and women.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). And we found no “reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Id. at 575. Thus, in Smith, we held that a transgender plaintiff (born male) who suffered adverse employment consequences after “he began to express a more feminine appearance and manner on a regular basis” could file an employment discrimination suit under Title VII, id. at 572, because such “discrimination would not [have] occur[red] but for the victim‘s sex,” id. at 574. As we reasoned in Smith, Title VII proscribes discrimination both against women who “do not wear dresses or makeup” and men who do. Id. Under any circumstances, “[s]ex stereotyping based on a person‘s gender non-conforming behavior is impermissible discrimination.” Id. at 575.
Here, Rost‘s decision to fire Stephens because Stephens was “no longer going to represent himself as a man” and “wanted to dress as a woman,” see R. 51-3 (Rost 30(b)(6) Dep. at 135–36) (Page ID #667), falls squarely within the ambit of sex-based discrimination that Price Waterhouse and Smith forbid. For its part, the Funeral Home has failed to establish a non-discriminatory basis for Stephens‘s termination, and Rost admitted that he did not fire Stephens
The Funeral Home nevertheless argues that it has not violated Title VII because sex stereotyping is barred only when “the employer‘s reliance on stereotypes . . . result[s] in disparate treatment of employees because they are either male or female.” Appellee Br. at 31. According to the Funeral Home, an employer does not engage in impermissible sex stereotyping when it requires its employees to conform to a sex-specific dress code—as it purportedly did here by requiring Stephens to abide by the dress code designated for the Funeral Home‘s male employees—because such a policy “impose[s] equal burdens on men and women,” and thus does not single out an employee for disparate treatment based on that employee‘s sex. Id. at 12. In support of its position, the Funeral Home relies principally on Jespersen v. Harrah‘s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc), and Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). Jespersen held that a sex-specific grooming code that imposed different but equally burdensome requirements on male and female employees would not violate Title VII. See 444 F.3d at 1109–11 (holding that the plaintiff failed to demonstrate how a grooming code that required women to wear makeup and banned men from wearing makeup was a violation of Title VII because the plaintiff failed to produce evidence showing that this sex-specific makeup policy was “more burdensome for women than for men“). Barker, for its part, held that a sex-specific grooming code that was enforced equally as to male and female employees would not violate Title VII. See 549 F.2d at 401 (holding that a grooming code that established different hair-length limits for male and female employees did not violate Title VII because failure to comply with the code resulted in the same consequences for men and women). For three reasons, the Funeral Home‘s reliance on these cases is misplaced.
First, the central issue in Jespersen and Barker—whether certain sex-specific appearance requirements violate Title VII—is not before this court. We are not considering, in this case, whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits. Our question is instead whether the Funeral Home could legally terminate Stephens, notwithstanding that she fully intended to comply with the company‘s sex-specific
Second, even if we would permit certain sex-specific dress codes in a case where the issue was properly raised, we would not rely on either Jespersen or Barker to do so. Barker was decided before Price Waterhouse, and it in no way anticipated the Court‘s recognition that Title VII “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Price Waterhouse, 490 U.S. at 251 (plurality) (quoting Manhart, 435 U.S. at 707 n.13). Rather, according to Barker, “[w]hen Congress makes it unlawful for an employer to ‘discriminate . . . on the basis of . . . sex . . .‘, without further explanation of its meaning, we should not readily infer that it meant something different than what the concept of discrimination has traditionally meant.” 549 F.2d at 401–02 (quoting Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145 (1976), superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat. 2076,
As for Jespersen, that Ninth Circuit case is irreconcilable with our decision in Smith. Critical to Jespersen‘s holding was the notion that the employer‘s “grooming standards,” which required all female bartenders to wear makeup (and prohibited males from doing so), did not on their face violate Title VII because they did “not require [the plaintiff] to conform to a stereotypical image that would objectively impede her ability to perform her job.” 444 F.3d at 1113. We reached the exact opposite conclusion in Smith, as we explained that requiring women to wear makeup does, in fact, constitute improper sex stereotyping. 378 F.3d at 574 (“After Price Waterhouse, an employer who discriminates against women because, for instance, they do
Finally, the Funeral Home misreads binding precedent when it suggests that sex stereotyping violates Title VII only when “the employer‘s sex stereotyping resulted in ‘disparate treatment of men and women.‘” Appellee Br. at 18 (quoting Price Waterhouse, 490 U.S. at 251).3 This interpretation of Title VII cannot be squared with our holding in Smith. There, we did not ask whether transgender persons transitioning from male to female were treated differently than transgender persons transitioning from female to male. Rather, we considered whether a transgender person was being discriminated against based on “his failure to conform to sex stereotypes concerning how a man should look and behave.” Smith, 378 F.3d at 572. It is apparent from both Price Waterhouse and Smith that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave. See Zarda v. Altitude Express, Inc., 883 F.3d 100, No. 15-3775, slip op. at 47 (2d Cir. Feb. 26, 2018) (en banc) (plurality) (“[T]he employer in Price Waterhouse could not have defended itself by claiming that it fired a gender-non-conforming man as well as a gender-non-conforming woman any more than it could persuasively argue that two wrongs make a right.“).
2. Discrimination on the Basis of Transgender/Transitioning Status
We also hold that discrimination on the basis of transgender and transitioning status violates Title VII. The district court rejected this theory of liability at the motion-to-dismiss stage, holding that “transgender or transsexual status is currently not a protected class under Title VII.” R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d at 598. The EEOC and Stephens argue that the district court‘s determination was erroneous because Title VII protects against sex stereotyping and “transgender discrimination is based on the non-conformance of an individual‘s gender identity and appearance with sex-based norms or expectations“; therefore, “discrimination because of an individual‘s transgender status is always based on gender-stereotypes: the stereotype that individuals will conform their appearance and behavior—whether their dress, the name they use, or other ways they present themselves—to the sex assigned them at birth.” Appellant Br. at 24; see also Intervenor Br. at 10–15. The Funeral Home, in turn, argues that Title VII does not prohibit discrimination based on a person‘s transgender or transitioning status because “sex,” for the purposes of Title VII, “refers to a binary characteristic for which there are only two classifications, male and female,” and “which classification arises in a person based on their chromosomally driven physiology and reproductive function.” Appellee Br. at 26. According to the Funeral Home, transgender status
For two reasons, the EEOC and Stephens have the better argument. First, it is analytically impossible to fire an employee based on that employee‘s status as a transgender person without being motivated, at least in part, by the employee‘s sex. The Seventh Circuit‘s method of “isolat[ing] the significance of the plaintiff‘s sex to the employer‘s decision” to determine whether Title VII has been triggered illustrates this point. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345 (7th Cir. 2017). In Hively, the Seventh Circuit determined that Title VII prohibits discrimination on the basis of sexual orientation—a different question than the issue before this court—by asking whether the plaintiff, a self-described lesbian, would have been fired “if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same.” Id. If the answer to that question is no, then the plaintiff has stated a “paradigmatic sex discrimination” claim. See id. Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women‘s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens‘s sex impermissibly affected Rost‘s decision to fire Stephens.
The court‘s analysis in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), provides another useful way of framing the inquiry. There, the court noted that an employer who fires an employee because the employee converted from Christianity to Judaism has discriminated against the employee “because of religion,” regardless of whether the employer feels any animus against either Christianity or Judaism, because “[d]iscrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Id. at 306 (emphasis in original). By the same token, discrimination “because of sex” inherently includes discrimination against employees because of a change in their sex. See id. at 307–08.4
The Funeral Home argues that Schroer‘s analogy is “structurally flawed” because, unlike religion, a person‘s sex cannot be changed; it is, instead, a biologically immutable trait. Appellee Br. at 30. We need not decide that issue; even if true, the Funeral Home‘s point is immaterial. As noted above, the Supreme Court made clear in Price Waterhouse that Title VII requires “gender [to] be irrelevant to employment decisions.” 490 U.S. at 240. Gender (or sex) is not being treated as “irrelevant to employment decisions” if an employee‘s attempt or desire to change his or her sex leads to an adverse employment decision.
Second, discrimination against transgender persons necessarily implicates Title VII‘s proscriptions against sex stereotyping. As we recognized in Smith, a transgender person is someone who “fails to act and/or identify with his or her gender“—i.e., someone who is inherently “gender non-conforming.” 378 F.3d at 575; see also id. at 568 (explaining that
We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much—both by this circuit and others. In G.G. v. Gloucester County School Board, 654 F. App‘x 606 (4th Cir. 2016), for instance, the Fourth Circuit described Smith as holding “that discrimination against a transgender individual based on that person‘s transgender status is discrimination because of sex under federal civil rights statutes.” Id. at 607. And in Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016), we refused to stay “a preliminary injunction ordering the school district to treat an eleven-year old transgender girl as a female and permit her to use the girls’ restroom” because, among other things, the school district failed to show that it would likely succeed on the merits. Id. at 220–21. In so holding, we cited Smith as evidence that this circuit‘s “settled law” prohibits “[s]ex stereotyping based on a person‘s gender non-conforming behavior,” id. at 221 (second quote quoting Smith, 378 F.3d at 575), and then pointed to out-of-circuit cases for the propositions that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes,” id. (citing Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011)), and “[t]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes,” id. (quoting G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 729 (4th Cir.) (Davis, J., concurring), cert. granted in part, 137 S. Ct. 369 (2016), and vacated and remanded, 137 S. Ct. 1239 (2017)). Such references support what we now directly hold: Title VII protects
The Funeral Home raises several arguments against this interpretation of Title VII, none of which we find persuasive. First, the Funeral Home contends that the Congress enacting Title VII understood “sex” to refer only to a person‘s “physiology and reproductive role,” and not a person‘s “self-assigned ‘gender identity.‘” Appellee Br. at 25–26. But the drafters’ failure to anticipate that Title VII would cover transgender status is of little interpretive value, because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998); see also Zarda, slip op. at 24–29 (majority opinion) (rejecting the argument that Title VII was not originally intended to protect employees against discrimination on the basis of sexual orientation, in part because the same argument “could also be said of multiple forms of discrimination that are [now] indisputably prohibited by Title VII . . . [but] were initially believed to fall outside the scope of Title VII‘s prohibition,” such as “sexual harassment and hostile work environment claims“). And in any event, Smith and Price Waterhouse preclude an interpretation of Title VII that reads “sex” to mean only individuals’ “chromosomally driven physiology and reproductive function.” See Appellee Br. at 26. Indeed, we criticized the district court in Smith for “relying on a series of 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.‘” 378 F.3d at 572 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)) (alteration in original). According to Smith, such a limited view of Title VII‘s protections had been “eviscerated by Price Waterhouse.” Id. at 573. The Funeral Home‘s attempt to resurrect the reasoning of these earlier cases thus runs directly counter to Smith‘s holding.
In a related argument, the Funeral Home notes that both biologically male and biologically female persons may consider themselves transgender, such that transgender status is not unique to one biological sex. Appellee Br. at 27–28. It is true, of course, that an individual‘s
Title VII does not ask whether a particular sex is discriminated against; it asks whether a particular ”individual” is discriminated against “because of such individual‘s . . . sex.” Taking individuals as the unit of analysis, the question is not whether discrimination is borne only by men or only by women or even by both men and women; instead, the question is whether an individual is discriminated against because of his or her sex.
Slip op. at 46 n.23 (plurality opinion) (emphasis in original) (quoting
Nor can much be gleaned from the fact that later statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of “gender identity,” while Title VII does not, see Appellee Br. at 28, because “Congress may certainly choose to use both a belt and suspenders to achieve its objectives,” Hively, 853 F.3d at 344; see also Yates v. United States, 135 S. Ct. 1074, 1096 (2015) (Kagan, J., dissenting) (noting presence of two overlapping provisions in a statute “may have reflected belt-and-suspenders caution“). We have, in fact, already read Title VII to provide redundant statutory protections in a different context. In In re Rodriguez, 487 F.3d 1001 (6th Cir. 2007), for instance, we recognized that claims alleging discrimination on the basis of ethnicity may fall within Title VII‘s prohibition on discrimination on the basis of national origin, see id. at 1006 n.1, even though at least one other federal statute treats “national origin” and “ethnicity” as separate traits, see
The Funeral Home places great emphasis on the fact that our published decision in Smith superseded an earlier decision that stated explicitly, as opposed to obliquely, that a plaintiff who “alleges discrimination based solely on his identification as a transsexual . . . has alleged a claim of sex stereotyping pursuant to Title VII.” Smith v. City of Salem, 369 F.3d 912, 922 (6th Cir.), opinion amended and superseded, 378 F.3d 566 (6th Cir. 2004). But such an amendment does not mean, as the Funeral Home contends, that the now-binding Smith opinion “directly rejected” the notion that Title VII prohibits discrimination on the basis of transgender status. See Appellee Br. at 31. The elimination of the language, which was not necessary to the decision, simply means that Smith did not expressly recognize Title VII protections for transgender persons based on identity. But Smith‘s reasoning still leads us to the same conclusion.
We are also unpersuaded that our decision in Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), precludes the holding we issue today. We held in Vickers that a plaintiff cannot pursue a claim for impermissible sex stereotyping on the ground that his perceived sexual orientation fails to conform to gender norms unless he alleges that he was discriminated against for failing to “conform to traditional gender stereotypes in any observable way at work.” Id. at 764. Vickers thus rejected the notion that “the act of identification with a particular group, in itself, is sufficiently gender non-conforming such that an employee who so identifies would, by this very identification, engage in conduct that would enable him to assert a successful sex stereotyping claim.” Id. The Vickers court reasoned that recognizing such a claim would impermissibly “bootstrap protection for sexual orientation into Title VII.” Id. (quoting Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)). The Funeral Home insists that, under Vickers, Stephens‘s sex-stereotyping claim survives only to the extent that it
concerns her “appearance or mannerisms on the job,” see id. at 763, but not as it pertains to her underlying status as a transgender person.The Funeral Home is wrong. First, Vickers does not control this case because Vickers concerned a different legal question. As the EEOC and amici Equality Ohio note, Vickers “addressed only whether
Second, we are not bound by Vickers to the extent that it contravenes Smith. See Darrah, 255 F.3d at 310 (“[W]hen a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case.“). As noted above, Vickers indicated that a sex-stereotyping claim is viable under
Therefore, for the reasons set forth above, we hold that the EEOC could pursue a claim under
3. Defenses to Title VII Liability
Having determined that the Funeral Home violated
a. Ministerial Exception
We turn first to the “ministerial exception” to
Public Advocate of the United States and its fellow amici argue that the ministerial exception applies in this case because (1) the exception applies both to religious and non-religious entities, and (2) Stephens is a ministerial employee. Public Advocate Br. at 20–24. Tellingly, however, the Funeral Home contends that the Funeral Home “is not a religious organization” and therefore, “the ministerial exception has no application” to this case. Appellee Br. at 35. Although the Funeral Home has not waived the ministerial-exception defense by failing to raise it, see Conlon, 777 F.3d at 836 (holding that private parties may not “waive
As we made clear in Conlon, the ministerial exception applies only to “religious institution[s].” Id. at 833. While an institution need not be “a church, diocese, or synagogue, or an entity operated by a traditional religious organization,” id. at 834 (quoting Hollins, 474 F.3d at 225), to qualify for the exception, the institution must be “marked by clear or obvious religious characteristics,” id. at 834 (quoting Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004)). In accordance with these principles, we have previously determined that the InterVarsity Christian Fellowship/USA (“IVCF“), “an evangelical campus mission,” constituted a religious organization for the purposes of the ministerial exception. See id. at 831, 833. IVCF described itself on its website as “faith-based religious organization” whose “purpose ‘is to establish and advance at colleges and universities witnessing communities of students and faculty who follow Jesus as Savior and Lord.‘” Id. at 831 (citation omitted). In addition, IVCF‘s website notified potential employees that it has the right to “hir[e] staff based on their religious beliefs so that all staff share the same religious commitment.” Id. (citation omitted). Finally, IVCF required all employees “annually [to] reaffirm their agreement with IVCF‘s Purpose Statement and Doctrinal Basis.” Id.
The Funeral Home, by comparison, has virtually no “religious characteristics.” Unlike the campus mission in Conlon, the Funeral Home does not purport or seek to “establish and advance” Christian values. See id. As the EEOC notes, the Funeral Home “is not affiliated with any church; its articles of incorporation do not avow any religious purpose; its employees are not required to hold any particular religious views; and it employs and serves individuals of all religions.” Appellant Reply Br. at 33–34 (citing R. 61 (Def.‘s Counter Statement of Disputed Facts ¶¶ 25–27, 30, 37) (Page ID #1832–35)). Though the Funeral Home‘s mission statement declares that “its highest priority is to honor God in all that we do as a company and as individuals,” R. 55 (Def.‘s Statement of Facts ¶ 21) (Page ID #1686), the Funeral Home‘s sole public displays of faith, according to Rost, amount to placing “Daily Bread” devotionals and “Jesus Cards” with scriptural references in public places in the funeral homes, which clients may pick up if they wish, see R. 51-3 (Rost 30(b)(6) Dep. at 39–40) (Page ID #652). The Funeral
Nor is Stephens a “ministerial employee” under Hosanna-Tabor. Following Hosanna-Tabor, we have identified four factors to assist courts in assessing whether an employee is a minister covered by the exception: (1) whether the employee‘s title “conveys a religious—as opposed to secular—meaning“; (2) whether the title reflects “a significant degree of religious training” that sets the employee “apart from laypersons“; (3) whether the employee serves “as an ambassador of the faith” and serves a “leadership role within [the] church, school, and community“; and (4) whether the employee performs “important religious functions . . . for the religious organization.” Conlon, 777 F.3d at 834–35. Stephens‘s title—“Funeral Director“—conveys a purely secular function. The record does not reflect that Stephens has any religious training. Though Stephens has a public-facing role within the funeral home, she was not an “ambassador of [any] faith,” and she did not perform “important religious functions,” see id. at 835; rather, Rost‘s description of funeral directors’ work identifies mostly secular tasks—making initial contact with the deceased‘s families, handling the removal of the remains to the funeral home, introducing other staff to the families, coaching the families through the first viewing, greeting the guests, and coordinating the families’ “final farewell,” R. 53-3 (Rost Aff. ¶¶ 14–33) (Page ID #930–35). The only responsibilities assigned to Stephens that could be construed as religious in nature were, “on limited occasions,” to “facilitate” a family‘s clergy selection, “facilitate the first meeting of clergy and family members,” and “play a role in building the family‘s confidence around the role the clergy will play, clarifying what type of religious message is desired, and integrating the clergy into the experience.” Id. ¶ 20 (Page ID #932–33). Such responsibilities are a far cry from the duties ascribed to the employee in Conlon, which “included assisting others to cultivate ‘intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.‘” 777 F.3d at 832. In short, Stephens was not a ministerial employee and the Funeral Home is not a religious institution, and therefore the ministerial exception plays no role in this case.
Congress enacted
The questions now before us are whether (1) we ought to remand this case and preclude the Funeral Home from asserting a
i. Applicability of the Religious Freedom Restoration Act
We have previously made clear that “Congress intended
The Funeral Home, in turn, argues that the question of
The Funeral Home is correct. Stephens‘s reply brief in support of her motion to intervene insists that “no party to an appeal may broaden the scope of litigation beyond the issues raised before the district court.” D.E. 23 (Stephens Reply in Support of Mot. to Intervene at 8) (citing Thomas v. Arn, 474 U.S. 140, 148 (1985)). Though the district court noted in a footnote that “the Funeral Home could not assert a
Stephens nevertheless insists that “intervenors . . . are permitted to present different arguments related to the principal parties’ claims.” Intervenor Reply Br. at 14 (citing Grutter v. Bollinger, 188 F.3d 394, 400–01 (6th Cir. 1999)). But in Grutter, this court determined that proposed intervenors ought to be able to present particular “defenses of affirmative action” that the principal party to the case (a university) might be disinclined to raise because of “internal and external institutional pressures.” 188 F.3d at 400. Allowing intervenors to present particular defenses on the merits to judiciable claims is different than allowing intervenors to change the procedural course of litigation by virtue of their intervention.
ii. Prima Facie Case Under RFRA
To assert a viable defense under
The EEOC argues that the Funeral Home‘s
If we take Rost‘s assertions regarding his religious beliefs as sincere, which all parties urge us to do, then we must treat Rost‘s running of the funeral home as a religious exercise—even though Rost does not suggest that ministering to grieving mourners by operating a funeral home is a tenet of his religion, more broadly. See United States v. Sterling, 75 M.J. 407, 415 (C.A.A.F. 2016) (noting that conduct that “was claimed to be religiously motivated at least in part . . . falls within
The Funeral Home‘s first alleged burden—that Stephens will present a distraction that will obstruct Rost‘s ability to serve grieving families—is premised on presumed biases. As the EEOC observes, the Funeral Home‘s argument is based on “a view that Stephens is a ‘man’ and would be perceived as such even after her gender transition,” as well as on the “assumption that a transgender funeral director would so disturb clients as to ‘hinder healing.‘” Appellant Reply Br. at 19. The factual premises underlying this purported burden are wholly unsupported in the record. Rost testified that he has never seen Stephens in anything other than a suit and tie and does not know how Stephens would have looked when presenting as a woman. R. 54-5 (Rost 30(b)(6) Dep. at 60–61) (Page ID #1362). Rost‘s assertion that he believes his clients would be disturbed by Stephens‘s appearance during and after her transition to the point that their healing
But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under
Of course, cases like Diaz, Fernandez, and Bradley concern a different situation than the one at hand. We could agree that courts should not credit customers’ prejudicial notions of what men and women can do when considering whether sex constitutes a “bona fide occupational qualification” for a given position while nonetheless recognizing that those same prejudices have practical effects that would substantially burden Rost‘s religious practice (i.e., the operation of his business) in this case. But the Ninth Circuit rejected similar reasoning in Fernandez, and we reject it here. In Fernandez, the Ninth Circuit held that customer preferences could not transform a person‘s gender into a relevant consideration for a particular position even if the record supported the idea that the employer‘s business would suffer from promoting a woman because a large swath of clients would refuse to work with a female vice-president. See 653 F.2d at 1276–77. Just as the Fernandez court refused to treat discriminatory promotion practices as critical to an employer‘s business, notwithstanding any evidence to that effect in the record, so too we refuse to treat discriminatory policies as essential to Rost‘s business—or, by association, his religious exercise.
The Funeral Home‘s second alleged burden also fails. Under Holt v. Hobbs, 135 S. Ct. 853 (2015), a government action that “puts [a religious practitioner] to th[e] choice” of “‘engag[ing] in conduct that seriously violates [his] religious beliefs’ [or] . . . fac[ing] serious” consequences constitutes a substantial burden for the purposes of
First, though Rost currently provides his male employees with suits and his female employees with stipends to pay for clothing, this benefit is not legally required and Rost does not suggest that the benefit is religiously compelled. See Appellant Br. at 49 (“[T]he EEOC‘s suit would require only that if Rost provides a clothing benefit to his male employees, he provide a comparable benefit (which could be in-kind, or in cash) to his female employees.“); R. 54-2 (Rost Aff.) (Page ID 1326–37) (no suggestion that clothing benefit is religiously motivated). In this regard, Rost is unlike the employers in Hobby Lobby, who rejected the idea that they could simply refuse to provide health care altogether and pay the associated penalty (which would allow them to avoid providing access to contraceptives in violation of their beliefs) because they felt religiously compelled to provide their employees with health insurance. See 134 S. Ct. at 2776. And while “it is predictable that the companies [in Hobby Lobby] would face a competitive disadvantage in retaining and attracting skilled workers” if they failed to provide health insurance, id. at 2777, the record here does not indicate that the Funeral Home‘s clothing benefit is necessary to attract workers; in fact, until the EEOC commenced the present action, the Funeral Home did not provide any sort of clothing benefit to its female employees. Thus, Rost is not being forced to choose between providing Stephens with clothing or else leaving the business; this is a predicament of Rost‘s own making.
Second, simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost‘s religious beliefs is not a substantial burden under
Eight of the nine circuits to review the issue, including this court, have determined that the opt-out process does not constitute a substantial burden. See id. at 1141 (collecting cases); see also Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015), cert. granted, judgment vacated sub nom. Mich. Catholic Conf. v. Burwell, 136 S. Ct. 2450 (2016).9 The courts reached this conclusion by examining the
We view the Funeral Home‘s compliance with antidiscrimination laws in much the same light. Rost may sincerely believe that, by retaining Stephens as an employee, he is supporting and endorsing Stephens‘s views regarding the mutability of sex. But as a matter of law, bare
At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so. Cf. Eternal Word, 818 F.3d at 1145 (“We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly
iii. Strict Scrutiny Test
Because the Funeral Home has not established that Rost‘s religious exercise would be substantially burdened by requiring the Funeral Home to comply with
(a) Compelling Government Interest
Under the “to the person” test, the EEOC must demonstrate that its compelling interest “is satisfied through application of the challenged law [to] . . . the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales, 546 U.S. at 430–31 (citing
As an initial matter, the Funeral Home does not seem to dispute that the EEOC “has a compelling interest in the ‘elimination of workplace discrimination, including sex
The Funeral Home‘s construction of the compelling-interest test is off-base. Rather than focusing on the EEOC‘s claim—that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior—the Funeral Home‘s test focuses instead on its defense (discussed above) that the Funeral Home merely wishes to enforce an appropriate workplace uniform. But the Funeral Home has not identified any cases where the government‘s compelling interest was framed as its interest in disturbing a company‘s workplace policies. For instance, in Hobby Lobby, the issue, which the Court ultimately declined to adjudicate, was whether the government‘s “interest in guaranteeing cost-free access to the four challenged contraceptive methods” was compelling—not whether the government had a compelling interest in requiring closely held organizations to act in a way that conflicted with their religious practice. See 134 S. Ct. at 2780.
Here, the same framework leads to the opposite conclusion. Failing to enforce
applying the accommodation procedure to the plaintiffs in these cases furthers [the government‘s] interests because the accommodation ensures that the plaintiffs’ female plan participants and beneficiaries—who may or may not share the same religious beliefs as their employer—have access to contraception without cost sharing or additional administrative burdens as the ACA requires.
818 F.3d at 1155 (emphasis added). The Eternal Word court reasoned that “[u]nlike the exception made in Yoder for Amish children,” who would be adequately prepared for adulthood even without compulsory education, the “poor health outcomes related to unintended or poorly timed pregnancies apply to the plaintiffs’ female plan participants or beneficiaries and their children just as they do to the general population.” Id. Similarly, here, the EEOC‘s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.
It is true, of course, that the specific harms the EEOC identifies in this case, such as depriving Stephens of her livelihood and harming her sense of self-worth, are simply permutations of the generic harm that is always suffered in employment discrimination cases. But O Centro‘s “to the person” test does not mean that the government has a compelling interest in enforcing the laws only when the failure to enforce would lead to uniquely harmful consequences. Rather, the question is whether “the asserted harm of granting specific exemptions to particular religious claimants” is sufficiently great to require compliance with the law. O Centro, 546 U.S. at 431. Here, for the reasons stated above, the EEOC has adequately demonstrated that Stephens has and would suffer substantial harm if we exempted the Funeral Home from
Finally, we reject the Funeral Home‘s claim that it should receive an exemption, notwithstanding any harm to Stephens or the EEOC‘s interest in eradicating discrimination, because “the constitutional guarantee of free exercise[,] effectuated here via
(b) Least Restrictive Means
The final inquiry under
The district court found that requiring the Funeral Home to adopt a gender-neutral dress code would constitute a less restrictive alternative to enforcing
Neither party endorses the district court‘s proposed alternative, and for good reason. The district court‘s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire. Though Rost does repeatedly say that he terminated Stephens because she “wanted to dress as a woman” and “would no longer dress as a man,” see R. 54-5 (Rost 30(b)(6) Dep. at 136–37) (Page ID #1372) (emphasis added), the record also contains uncontroverted evidence that Rost‘s reasons for terminating Stephens extended to other aspects of Stephens‘s intended presentation. For instance, Rost stated that he fired Stephens because Stephens “was no longer going to represent himself as a man,” id. at 136 (Page ID #1372) (emphasis added), and Rost insisted that Stephens presenting as a female would disrupt clients’ healing process because female clients would have to “share a bathroom with a man dressed up as a woman,” id. at 74, 138–39 (Page ID #1365, 1373). The record thus compels the finding that Rost‘s concerns extended beyond Stephens‘s attire and reached Stephens‘s appearance and behavior more generally.
At the summary-judgment stage, where a court may not “make credibility determinations, weigh the evidence, or draw [adverse] inferences from the facts,” Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)), the district court was required to account for the evidence of Rost‘s non-clothing-based sex stereotyping in determining whether a proposed less restrictive alternative furthered the government‘s “stated interests equally [as] well,” Hobby Lobby, 134 S. Ct. at 2782. Here, as the evidence above shows, merely altering the Funeral Home‘s dress code would not address the discrimination Stephens faced because of her broader desire “to represent [her]self as a [wo]man.” R. 54-5 (Rost 30(b)(6) Dep. at 136) (Page ID #1372). Indeed, the Funeral Home‘s counsel conceded at oral argument that Rost would have objected to Stephens‘s coming “to work presenting clearly as a woman and acting as a woman,” regardless of whether
The Funeral Home‘s proposed alternative—to “permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work,” Appellee Br. at 44–45—is equally flawed. The Funeral Home‘s suggestion would do nothing to advance the government‘s compelling interest in preventing and remedying discrimination against Stephens based on her refusal to conform at work to stereotypical notions of how biologically male persons should dress, appear, behave, and identify. Regardless of whether the EEOC has a compelling interest in combating sex-specific dress codes—a point that is not at issue in this case—the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex. The Funeral Home‘s proposed alternative sidelines this interest entirely.13
The EEOC, Stephens, and several amici argue that searching for an alternative to
To start, the Supreme Court has previously acknowledged that “there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under
The Court seemingly recognized
As Stephens notes, at least two district-level federal courts have also concluded that
We also find meaningful Congress‘s decision not to include exemptions within
As a final point, we reject the Funeral Home‘s suggestion that enforcing
In short, the district court erred in finding that EEOC had failed to adopt the least restrictive means of furthering its compelling interest in eradicating discrimination in the workplace. Thus, even if we agreed with the Funeral Home that Rost‘s religious exercise would be substantially burdened by enforcing
C. Clothing-Benefit Discrimination Claim
The district court erred in granting summary judgment in favor of the Funeral Home on the EEOC‘s discriminatory clothing-allowance claim. We long ago held that the scope of the complaint the EEOC may file in federal court in its efforts to enforce
In Bailey, a white female employee charged that her employer failed to promote her on account of her sex, generally failed to promote women because of their sex, failed to pay equally qualified women as well as men, and failed to recruit and hire black women because of their race. Id. at 442. While investigating these claims, the EEOC found there was no evidence to support the complainant‘s charges of sex discrimination, but there was reasonable cause to believe the company had racially discriminatory hiring and promotion practices. In addition, the EEOC learned that the employer had seemingly refused to hire one applicant on the basis of his religion. After failed efforts at conciliation, the EEOC initiated a lawsuit against the employer alleging both racial and religious discrimination. We held that the EEOC lacked authority to bring an enforcement action regarding alleged religious discrimination because “[t]he portion of the EEOC‘s complaint incorporating allegations of religious discrimination exceeded the scope of the EEOC investigation of [the defendant employer] reasonably expected to grow out of [the original] charge of sex and race discrimination.” Id. at 446. We determined, however, that the
As we explained in Bailey, the EEOC may sue for matters beyond those raised directly in the EEOC‘s administrative charge for two reasons. First, limiting the EEOC complaint to the precise grounds listed in the charge of discrimination would undercut
At the same time, however, we concluded in Bailey that allowing the EEOC to sue for matters beyond those reasonably expected to arise from the original charge would undermine
The EEOC now insists that Bailey is no longer good law after the Supreme Court‘s decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980). In General Telephone, the Supreme Court held that Rule 23 of the Federal Rules of Civil
The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff‘s claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the
Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party‘s stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party‘s complaint are actionable. The latter approach is far more consistent with the EEOC‘s role in the enforcement ofTitle VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.
Gen. Tel., 446 U.S. at 330–31 (internal citations omitted). The EEOC argues that this passage directly contradicts the holding in Bailey, in which we rejected the EEOC‘s argument that it “can investigate evidence of any other discrimination called to its attention during the course of an investigation.” See 563 F.2d at 446.
Though there may be merit to the EEOC‘s argument, see EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010) (citing General Telephone for the proposition that “[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge” (citing Gen. Tel., 446 U.S. at 331)), we need not resolve Bailey‘s compatibility with General Telephone at this time because our holding in Bailey does not preclude the EEOC from bringing a clothing-allowance-discrimination claim in this case.
First, the present case is factually distinguishable from Bailey. In Bailey, the court determined that allegations of religious discrimination were outside the scope of an investigation “reasonably related” to the original charge of sex and race discrimination because, in part, “[t]he evidence presented at trial by the EEOC to support its allegations of religious discrimination did not involve practices affecting [the original charger].” 563 F.2d at 447. Here, by contrast,
Second, we have developed a broad conception of the sorts of claims that can be “reasonably expected to grow out of the initial charge of discrimination.” See Bailey, 563 F.2d at 446. As we explained in Davis v. Sodexho, 157 F.3d 460 (6th Cir. 1998), “where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.” Id. at 463. And we have also cautioned that “EEOC charges must be liberally construed to determine whether . . . there was information given in the charge that reasonably should have prompted an EEOC investigation of [a] separate type of discrimination.” Leigh v. Bur. of State Lottery, 1989 WL 62509, at *3 (6th Cir. June 13, 1989) (Table) (citing Bailey, 563 F.2d at 447). Here, Stephens alleged that she was fired after she shared her intention to present and dress as a woman because the Funeral Home “management [told her that it] did not believe the public would be accepting of [her] transition” from male to female. R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). It was reasonable to expect, in light of this allegation, that the EEOC would investigate the Funeral Home‘s employee-appearance requirements and expectations, would learn about the Funeral Home‘s sex-specific dress code, and would thereby uncover the Funeral Home‘s seemingly discriminatory clothing-allowance policy. As much is clear from our decision in Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981), in which “we held that the plaintiffs could bring equal pay claims alleging that their union discriminated in negotiating pay scales for different job designations, despite the fact that the plaintiffs’ EEOC charge alleged only that the union failed to represent them in securing the higher paying job designations.”
We therefore REVERSE the district court‘s grant of summary judgment to the Funeral Home on the EEOC‘s discriminatory-clothing-allowance claim and REMAND with instructions to consider the merits of the EEOC‘s claim.
III. CONCLUSION
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under