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Alliance Alert

Sep 27, 2019

Can Americans be Punished for Relying on the Law as Written? The Supreme Court Will Decide.

In a little over one week, the U.S. Supreme Court will hear oral arguments in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. Alliance Defending Freedom is representing Tom Rost of Harris Funeral Homes, who was sued by the EEOC (a federal agency) in 2013.

Rost has a sex-specific dress code that is consistent with both federal law and the EEOC’s own Compliance Manual. He maintains that policy to ensure that families focus on processing their grief rather than on the funeral home and its employees.

After working as a funeral home director at Harris for six years, a male employee gave Rost a letter announcing a plan to begin presenting and dressing as a woman at work while interacting with grieving families.

This prompted the EEOC to sue Rost, claiming that “sex” in federal law includes the concept of “gender identity,” which is quite contrary to what Congress wrote. Even though the federal government has since changed its position in this case and now supports the funeral home, the ACLU intervened and argues that the Supreme Court should uphold the lower court opinion redefining “sex” discrimination in federal law.

Now, the Supreme Court will decide whether or not Americans can rely on what the law says.

Let’s take a look.

The story of Harris Funeral Homes begins well before Tom Rost’s time as the owner of his family’s business. In 1910, Rost’s grandfather, R.G. Harris, decided to serve grieving Detroit-area families. This was before personal automobiles were part of everyday life, so Harris used a horse-drawn hearse to visit the homes of mourners. Since then, the funeral home has helped thousands of families. Many families have utilized the services of Harris Funeral Homes multiple times to help them through life’s most challenging moments.

Almost 100 years after the company’s founding, Tom Rost hired Anthony Stephens as a funeral director. Stephens served for nearly six years as a face of the funeral home, working closely with grieving families.

Stephens initially agreed to all employment policies, including the sex-specific dress code that met both industry standards and federal law requirements. Yet, in 2013, Stephens handed Rost a letter indicating a desire to present and dress as a woman while serving as a funeral home director.

Writing at the Detroit News ADF Vice President of Appellate Advocacy John Bursch, who will argue Harris at the U.S. Supreme Court on Oct. 8, describes what went into Rost’s decision:

Rost had to consider how Stephens’s plan would affect his female employees, like his 80-year-old employee Dolly. There was only one women’s restroom at the location where Stephens worked. Was it right to require Dolly to share it with Stephens?

Rost also reflected on the clients Harris Funeral Homes exists to serve. Female clients grieving the loss of a loved one would also have to share the restroom with Stephens. What’s more, many of the families who turn to Harris Funeral Homes are repeat clients. So someone who worked with Stephens because her mother died in January might come back in July for the death of another loved one and see Stephens dressed as a woman.

After considering his options, Rost decided he could not agree to Stephens’ plan. As a result, the EEOC sued Harris Funeral Homes, and that kick-started the case that has brought Tom to the U.S. Supreme Court.

Bursch also describes the legal implications of this case:

Despite the EEOC’s endorsement of sex-specific dress codes — like the one in place at Harris Funeral Homes — that government agency accused Rost of illegal sex discrimination under Title VII of the 1964 Civil Rights Act. That law ensures that women will not be treated worse than a male co-worker or job applicant just because she is a woman.

Rost’s opponents struck a major blow against him when a federal court of appeals decided to rewrite federal law. Although sex discrimination has always meant treating one sex less favorably than the other because of sex, the court of appeals redefined the law to include different treatment based on transgender status.

While the federal government now agrees with Rost, the ACLU insists that the Supreme Court should rewrite the law. If the ACLU succeeds, it would punish Harris Funeral Homes and other businesses for relying on the law as it is written. And the court would create unfair situations for women in the workplace, in athletics, and even in places like women’s shelters that serve abuse victims.

Writing at the Washington Examiner, Bursch explains a little bit about what the outcome of the case might mean:

Tom was simply acting consistently with existing law by implementing a sex-specific dress code. Although unelected federal officials do not have the power to change the law, that’s exactly what happened.

The ACLU would have the public believe that Harris Funeral Homes is trying to change federal employment law to suit its larger aims. But the ACLU has things backwards. There is no question that, when Congress passed the Civil Rights Act of 1964, it included the category of “sex” to ensure that women would not be treated worse than male co-workers or job applicants just because of their sex.

Yet the ACLU is trying to use this moment to distort and altogether rewrite federal law. It has no qualms about punishing a small family business like Harris Funeral Homes in the process.

The case has implications far beyond employee dress codes. Changing “sex” to mean “gender identity” can deprive female athletes of a fair playing field, something high school athletes are already facing in Connecticut. And women who seek refuge from abuse by going to a women’s shelter might find that the government now requires those safe havens to admit men who identify as women—a situation that has already played out in Anchorage.

The Supreme Court should rule for Harris Funeral Homes. There are two important reasons why. First, Americans should be able to rely on what the law says. Second, redefining “sex” to mean “gender identity” creates chaos and is unfair to women and girls.

  • Title VII
  • Harris Funeral Homes
  • Friday Feature
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