Rules Are for Schmucks: The End of Civil Rights?

When the first articles began surfacing about last month’s federal court decision in Equal Employment Opportunity Commission (EEOC) v. Harris Funeral Homes, they had a distinct “the sky is falling” tone—e.g., “Federal Judge Says Religion Gives You A Right To Discriminate.”

A closer reading of the case itself shows that things aren’t quite that bad. But it does demonstrate yet again that the law on which the case was based is comically absurd and needs to be repealed as soon as possible.

The R. G. and G. R. Harris Funeral Homes hired Anthony Stephens as a funeral director and embalmer in 2007. He compiled a fine record on the job. Until 2013, that is, when after much inner torment over what he described as a “gender identity disorder” he informed the company of his decision to undergo sex reassignment surgery. As a preliminary to this treatment, he was required to live and work full-time as a woman for one year. This meant wearing women’s clothes to work and changing his first name to Amiee.

A few days after beginning this phase, Amiee Stephens was fired. Give the employer credit for not playing cutesy games—Stephens was explicitly fired for messing with God’s plan by wearing women’s clothing even though God had originally given her male genitalia.

There is case law precedent under the federal civil rights laws saying that companies cannot fire someone for failing to comply with sexual stereotypes, e.g. by wearing the “wrong” gender clothes, any more than they can fire someone for being black, or being Catholic. That precedent should have made this an easy case. What made the case complicated was—you guessed it—the Religious Freedom Restoration Act of 1993 (RFRA).

RFRA says that every law by which the federal government places a “substantial burden” on the “exercise of religion” is invalid unless (1) the government has a “compelling interest” in enforcing that law, and (2) the government has chosen the “least restrictive means” of achieving that interest.

The court had little doubt about whether the company was “exercising religion” here. The Hobby Lobby case makes it crystal clear that corporations can have religious beliefs just like individuals can, and this company’s objections to transgenderism come straight out of the Bible: “The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination unto the Lord thy God.” Could that be any clearer? Not much doubt about “substantial burden,” either, given the heavy penalties for violations of the civil rights laws. The court assumed the government had a “compelling interest” in enforcing its civil rights laws, which shouldn’t seem like much of a stretch considering all those who gave their lives trying to get them enacted.

The sticky part comes on deciding whether the government had selected the “least restrictive means” imaginable for achieving its goal—whether it had bent over backward far enough to accommodate the strictures of the book of Deuteronomy. The court found no evidence on the record that it had. In fact, there was no evidence that the EEOC had looked for any less restrictive means at all, much less selected the winning “least restrictive” option.

All the simpletons at EEOC had done was look at the law, look at the courts that had interpreted it as applying to transgender people, note that this company was flatly defying it, and file a suit. This used to be called “law enforcement.” Nowadays it’s called “trampling on religious freedom.”

The court even exercised its own imagination as to how EEOC might have come up with a “least restrictive means.” It might have adopted a rule that all funeral directors have to wear unisex clothes, as a way to prevent “sex stereotyping.” Brilliant! Can you imagine what the reaction of outrage to any such nationwide rule would be, from virtually everyone involved? That both men and women have to ditch their clothing preferences for what a court of law considers “unisex” to accommodate a biblical rule? But since EEOC hadn’t adopted that “least restrictive means,” the company prevailed under RFRA, and Amiee Stephens was given no relief.

I told you at the top that the decision was ridiculous, and I haven’t even gotten to the truly astounding part yet. The court quite rightly anticipates the mountains of abuse that would be heaped on a decision that the civil rights laws are essentially null and void for any employer that claims a contrary instruction from God, and takes pains to explain that this is not the effect of its decision. Why not? Because the RFRA defense is only available if it’s the government (in this case, the EEOC) that brings the case—not if it’s a private individual, like Amiee Stephens, who brings it. And the vast majority of discrimination cases are in fact brought by individuals, rather than by EEOC.

So if the case had been Amiee Stephens v. Harris Funeral Homes, she’d have won. But since it was EEOC v. Harris Funeral Homes, she lost. RFRA strikes again!

It’s frustrating at times not to believe in an afterlife. It would be nice to ponder the belly laugh Franz Kafka would enjoy, looking down on (or up at) this kind of nonsense.

Here’s a wrinkle that might make him giggle even more. What if Amiee Stephens walks up to her former employer tomorrow and says “I’d like you to hire me back”? Then when they refuse, she sues them in her own name, rather than having the EEOC do it for her? Does she win this time? There are complicated legal rules about res judicata and collateral estoppel that might or might not apply, depending in part on how differently the court views the 2014 firing from the 2016 refusal to rehire. Enough rules to twist the pretzel quite a few more times. Maybe even enough to help persuade the Congress that having one set of laws that applies to everybody, regardless of their religious beliefs, makes more sense than the RFRA farce we’re stuck with now.