Jennifer Chambers

The Detroit News

A federal judge in Detroit is expected to decide this month whether a Garden City funeral home violated a federal civil rights law when it fired a transgender employee who wanted to dress as a woman.

R.G. & G.R. Harris Funeral Homes, which operates in three locations in Metro Detroit, says it is protected under the Religious Freedom Restoration Act.

The Equal Employment Opportunity Commission filed a complaint against the funeral home company in 2014, asking the court to correct its alleged unlawful employments practices.

The lawsuit, filed in 2014, is the federal agency’s first to protect transgender people in the workplace. It also filed a lawsuit that year against a Florida eye clinic, also accusing it of illegally firing an employee making a transition to female.

U.S. District Judge Sean Cox is expected to rule this month on the metro Detroit case that centers on the 2013 firing of Amiee Stephens, an embalmer and funeral director for the company.

Stephens was fired after six years of working at the funeral home in Garden City, after telling her boss she was transitioning from male to female, the employment commission said.

Stephens explained in a letter on July 31, 2013, that she would soon start to dress in appropriate women’s business attire at work, the employment commission said. Two weeks later, Harris’ owner fired Stephens, telling her what she was “proposing to do” was unacceptable. Stephens declined to be interviewed for this story.

Officials with the funeral home have said they require employees to dress in a manner sensitive to grieving family members and friends and has protection under the Religious Freedom Restoration Act, which Congress passed in 2013.

In oral arguments before Cox last week, employment commission attorney Dale R. Price Jr. said the funeral home broke the law by discriminating against Stephens based on gender stereotypes.

As a transgender person, Stephens is protected under Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin, Price said.

“We are trying to achieve a workplace free of sexual discrimination,” Price said. “We must enforce Title VII. We have evidence of sex-based stereotypes in this case.”

The funeral home’s dress code for men and women — which provides an allowance for men to purchase suits but not for women — is an unlawful employment practice that also violates Title VII and is evidence of sexual stereotyping, Price said.

During oral arguments, Cox asked Price whether Stephens had fully transitioned by having “surgical intervention.” After Price said no, Cox said: “She was a woman who wanted to dress as a woman?” to which Price said yes.

The Alliance Defending Freedom, based in Scottsdale, Arizona, is defending the funeral home in the case.

Douglas G. Wardlow, attorney for the alliance, said the case is about the right of employers to control their own business and engage in a legally protected sex-specific dress code that has been upheld in other courts across the nation.

Wardlow argued transgender people are not protected under Title VII and the employment commission is attempting to force the business to allow a biologically male employee to wear a female uniform while interacting with the public.

Thomas F. Rost is owner of the funeral home, which has locations in Garden City, Detroit and Livonia. Applying Title VII would violate Rost’s sincerely held religious beliefs, Wardlow said. He declined to be interviewed for this story.

“Rost believes that he ‘would be violating God’s commands” by paying for and permitting a male funeral director to wear the uniform for female funeral directors while at work,” Wardlow said.

Wardlow cited the 2014 landmark U.S. Supreme Court decision involving the Hobby Lobby Stores, saying the court ruled the Religious Freedom Restoration Act also protects religiously motivated owners of closely held for-profit corporations such as R.G. & G.R. Harris Funeral Homes.

“This forces Mr. Rost to portray to the world a belief that is contrary to his own,” said Wardlow, and that Stephens presenting as a female “would be a disruption to his business and his ministry.”

In May, the ACLU of Michigan filed an amicus brief in the case supporting the employment commission’s position, saying the right to practice one’s religion, or no religion, is a core component of civil liberties and is of vital importance to the ACLU.

“At the same time, the ACLU is committed to fighting discrimination and inequality, including discrimination against transgender people by, for example, denying transgender employees the ability to dress consistently with their gender identity,” the brief by ACLU attorney Jay Kaplan said.

Kaplan said an employer may not use a sex-specific dress code as license to subject a transgender employee to an adverse employment action, such as firing, because she intends to dress consistently with her gender identity. He also said Title VII is essential to furthering the government’s compelling interest in preventing discrimination.

Deborah Gordon, a Bloomfield Hills-based attorney who operates an employment and civil rights firm, gives credit to the employment commission for trying to find a solution to a difficult problem.

“The EEOC is doing this because Congress has not passed law protecting transgender people,” Gordon said. “It’s a completely new area. Some cases have addressed this but the judge has a lot to look up. He won’t be a final step in the road. It will go to the appeals court.”

In 1970s and 1980s when Gordon started practicing law, she heard from women who said customers said they didn’t want to work with a woman salesperson. The same happened with African-American men and women, she said.

“That’s illegal. You cannot run a workplace based on customers’ preferences, not when it comes to protected categorizes, such as gender and race,” Gordon said. “These are places of public accommodation. The public has to understand they can do the job.”

jchambers@detroitnews.com