Employment & Labor Insider

This should be interesting. You probably remember the case of EEOC v. R.G. & G.R. Harris Funeral Homes, involving the termination of a Detroit-area transgender funeral home director.

(How could you forget? I've blogged about the case here, here, here, here, here, here, here, and here.)

The funeral home owner undisputedly terminated Aimee Stephens because she planned to begin presenting as a woman. According to the Equal Employment Opportunity Commission, that violated Title VII, which prohibits discrimination based on, among other things, "sex." The funeral home owner, represented by the Alliance Defending Freedom, argued that Title VII doesn't prohibit gender identity discrimination and that, by requiring the owner to allow Ms. Stephens to present as a woman at work, the EEOC was violating the owner's sincere traditional Baptist religious beliefs.

The funeral home won at the district court level, based on the Religious Freedom Restoration Act. But the EEOC appealed, and won at the U.S. Court of Appeals for the Sixth Circuit.

Last week, the funeral home petitioned for the U.S. Supreme Court to review the Sixth Circuit decision.

Now here is the interesting part:

The EEOC cannot oppose the Supreme Court petition without the permission of the U.S. Department of Justice. And, as I've reported here before, the DOJ's position is that Title VII does not prohibit discrimination based on sexual orientation or gender identity.

The deadline for the EEOC to respond to the funeral home's request for Supreme Court review is August 23. Thus far, the DOJ has not said whether it will allow the agency to do so.

Anticipating that something like this might occur when the Trump Administration took office, the American Civil Liberties Union intervened in the case on the side of the EEOC. So, even if the EEOC is not allowed to get involved, the ACLU can proceed on Ms. Stephens' behalf.

As noted in an excellent article by Chris Opfer of Bloomberg BNA (paid subscription required for access), the DOJ may allow the EEOC to do its thing anyway. Solicitor General Noel Francisco allowed the National Labor Relations Board to (unsuccessfully) oppose class waivers in arbitration agreements in the case of Epic Systems v. Lewis.

The funeral home is asking the Supreme Court to rule on the following:

1) Whether Title VII's prohibition on "sex" discrimination encompasses discrimination based on gender identity.

2) Whether the Supreme Court's 1989 decision on sex stereotyping (Price Waterhouse v. Hopkins) means that employers cannot have certain sex-specific terms of employment, such as dress codes, separate restrooms, and separate changing rooms.

We will continue to follow this case!