Argued: October 4, 2017
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:14-cv-13710-Sean F.
Cox, District Judge.
Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellant.
A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Chicago, Illinois, for Intervenor.
Douglas G. Wardlow, ALLIANCE DEFENDING FREEDOM, Scottsdale,
Arizona, for Appellee.
Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellant.
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
EDUCATION FUND, INC., Los Angeles, California, Gregory R.
Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.,
Atlanta, Georgia, Richard B. Katskee, AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, Washington, D.C., Doron M.
Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio,
Elizabeth Reiner Platt, Katherine Franke, PRIVATE RIGHTS /
PUBLIC CONSCIENCE PROJECT, New York, New York, Mary Jane
Eaton, Wesley R. Powell, Sameer Advani, WILLKIE FARR &
GALLAGHER, LLP, New York, New York, Eric Alan Isaacson, LAW
OFFICE OF ERIC ALAN ISAACSON, La Jolla, California, William
J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici
Before: MOORE, WHITE, and DONALD, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
Stephens (formerly known as Anthony Stephens) was born
biologically male. 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
parties submitted dueling motions for summary judgment. The
EEOC argued that it was entitled to judgment as a matter of
law on both of its claims. For its part, the Funeral Home
argued that it did not violate Title VII by requiring
Stephens to comply with a sex-specific dress code that it
asserts equally burdens male and female employees, and, in
the alternative, that Title VII should not be enforced
against the Funeral Home because requiring the Funeral Home
to employ Stephens while she dresses and represents herself
as a woman would constitute an unjustified substantial burden
upon Rost's (and thereby the Funeral Home's)
sincerely held religious beliefs, in violation of the
Religious Freedom Restoration Act ("RFRA"). As to
the EEOC's discriminatory-clothing-allowance claim, the
Funeral Home argued that Sixth Circuit case law precludes the
EEOC from bringing this claim in a complaint that arose out
of Stephens's original charge of discrimination because
the Funeral Home could not reasonably expect a
clothing-allowance claim to emerge from an investigation into
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.
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).
Funeral Home is a closely held for-profit corporation. R. 55
(Def.'s Statement of Facts ¶ 1) (Page ID
#1683). 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).
Funeral Home requires its public-facing male employees to
wear suits and ties and its public-facing female employees to
wear skirts and business jackets. R. 55 (Def.'s Statement
of Facts at ¶ 51) (Page ID #1691). The Funeral Home
provides all male employees who interact with clients,
including funeral directors, with free suits and ties, and
the Funeral Home replaces suits as needed. R. 61 (Def.'s
Counter Statement of Disputed Facts ¶¶ 42, 48)
(Page ID #1836- 37). All told, the Funeral Home spends
approximately $470 per full-time employee per year and $235
per part-time employee per year on clothing for male
employees. Id. ¶ 55 (Page ID #1839).
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).
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
work out, " and offered Stephens a severance agreement
if she "agreed not to say anything or do anything."
R. 54-15 (Stephens Dep. at 75-76) Page ID #1455; R. 63-5
(Rost Dep. at 126-27) Page ID #1974. Stephens refused.
Id. Rost testified that he fired Stephens because
"he was no longer going to represent himself as a man.
He wanted to dress as a woman." R. 51-3 (Rost 30(b)(6)
Dep. at 135-36) (Page ID #667).
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
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).
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 process, and the EEOC filed a
complaint against the Funeral Home in the district court on
September 25, 2014. R. 1 (Complaint) (Page ID #1-9).
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
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- allowance claim because, under
longstanding Sixth Circuit precedent, the EEOC may pursue in
a Title VII lawsuit only claims that are reasonably expected
to grow out of the complaining party's-in this case,
Stephens's-original charge. Id. at 864-70. The
district court entered final judgment on all counts in the
Funeral Home's favor on August 18, 2016, R. 77 (J.) (Page
ID #2235), and the EEOC filed a timely notice of appeal
shortly thereafter, see R. 78 (Notice of Appeal)
(Page ID #2236-37).
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.
Standard of Review
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." Fed.R.Civ.P.
56(a). In reviewing a grant of summary judgment, "we
view all facts and any inferences in the light most favorable
to the nonmoving party." Risch, 581 F.3d at 390
(citation omitted). We also review all "legal
conclusions supporting [the district court's] grant of
summary judgment de novo." Doe v. Salvation
Army in U.S., 531 F.3d 355, 357 (6th Cir. 2008)
Unlawful Termination Claim
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." 42 U.S.C. § 2000e-2(a)(1). "[A]
plaintiff can establish a prima facie case [of
unlawful discrimination] by presenting direct evidence of
discriminatory intent." Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citing
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(plurality opinion)). "[A] facially discriminatory
employment policy or a corporate decision maker's express
statement of a desire to remove employees in the protected
group is direct evidence of discriminatory intent."
Id. (citation omitted). Once a plaintiff establishes
that "the prohibited classification played a motivating
part in the [adverse] employment decision, " the
employer then bears the burden of proving that it would have
terminated the plaintiff "even if it had not been
motivated by impermissible discrimination." Id.
(citing, inter alia, Price Waterhouse, 490
U.S. at 244-45).
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.
Discrimination on the Basis of Sex Stereotypes
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). In enacting Title VII, the plurality reasoned,
"Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes." Id. at 251 (quoting Los
Angeles Dep't of Water & Power v. Manhart, 435
U.S. 702, 707 n.13 (1978)). The Price Waterhouse
plurality, along with two concurring Justices, therefore
determined that a female employee who faced an adverse
employment decision because she failed to "walk . . .
femininely, talk . . . femininely, dress . . . femininely,
wear make-up, have her hair styled, [or] wear jewelry, "
could properly state a claim for sex discrimination under
Title VII-even though she was not discriminated against for
being a woman per se, but instead for failing to be
womanly enough. See id. at 235 (plurality opinion)
(quoting Hopkins v. Price Waterhouse, 618 F.Supp.
1109, 1117 (D.D.C. 1985)); id. at 259 (White, J.,
concurring); id. at 272 (O'Connor, J.,
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.
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 for any performance-related issues.
See R. 51-3 (Rost 30(b)(6) Dep. at 109, 136) (Page
ID #663, 667). We therefore agree with the district court
that the Funeral Home discriminated against Stephens on the
basis of her sex, in violation of Title VII.
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.
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 dress code, simply because she
refused to conform to the Funeral Home's notion of her
sex. When the Funeral Home's actions are viewed in the
proper context, no reasonable jury could believe that
Stephens was not "target[ed] . . . for disparate
treatment" and that "no sex stereotype factored
into [the Funeral Home's] employment decision."
See Appellee Br. at 19-20.
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, 52
U.S.C. § 2000e(k), as recognized in Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 89 (1983)). Of course,
this is precisely the sentiment that Price
Waterhouse "eviscerated" when it recognized
that "Title VII's reference to 'sex'
encompasses both the biological differences between men and
women, and gender discrimination, that is, discrimination
based on a failure to conform to stereotypical gender
norms." Smith, 378 F.3d at 573 (citing
Price Waterhouse, 490 U.S. at 251). Indeed,
Barker's incompatibility with Price
Waterhouse may explain why this court has not cited
Barker since Price Waterhouse was decided.
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
not wear dresses or makeup, is engaging in sex discrimination
because the discrimination would not occur but for the
victim's sex."). And more broadly, our decision in
Smith forecloses the Jespersen court's
suggestion that sex stereotyping is permissible so long as
the required conformity does not "impede [an
employee's] ability to perform her job, "
Jespersen, 444 F.3d at 1113, as the Smith
plaintiff did not and was not required to allege that being
expected to adopt a more masculine appearance and manner
interfered with his job performance. Jespersen's
incompatibility with Smith may explain why it has
never been endorsed (or even cited) by this circuit-and why
it should not be followed now.
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). 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., ___ F.3d ___, 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
short, the Funeral Home's sex-specific dress code does
not preclude liability under Title VII. Even if the Funeral
Home's dress code does not itself violate Title VII-an
issue that is not before this court-the Funeral Home may not
rely on its policy to combat the charge that it engaged in
improper sex stereotyping when it fired Stephens for wishing
to appear or behave in a manner that contradicts the Funeral
Home's perception of how she should appear or behave
based on her sex. Because the EEOC has presented unrefuted
evidence that unlawful sex stereotyping was "at least a
motivating factor in the [Funeral Home's] actions, "
see White v. Columbus Metro. Hous. Auth., 429 F.3d
232, 238 (6th Cir. 2005) (quoting Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 ...