Court says Hobby Lobby decision sometimes greenlights sex discrimination at work

I teased it in Friday’s post.

Last week, a Michigan federal court held (here) that a workplace dress code that requires one gender to conform to a sex stereotype (e.g., men must wear suits, and women must wear dresses) is “direct evidence” of sex discrimination. But, the employer in the Michigan case refused to waver from the letter of the dress code, and avoided a sex discrimination claim under Title VII.

Why? Because Hobby Lobby.

You remember Hobby Lobby, right?

That is, the employer argued that the Religious Freedom Restoration Act of 1993 (“RFRA”) would trump Title VII; otherwise, the employer would be forced to violate its sincerely held religious beliefs. This defense emanates from the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. In Hobby Lobby, the Supreme Court held that employers, like individuals, are free to engage in religious expression. And there’s not much the government can do about it, unless it has a compelling, but not very restrictive interest.

In this particular case, the employer’s owner (and, therefore, the employer itself) had a major issue with the plaintiff being transgender. This sincerely-held religious belief motivated the employer to apply the dress code, as is. But, rather than attack the dress code itself, the EEOC took a different approach. That is, the EEOC opined that the plaintiff, who was transitioning from male to female, could dress as a woman to express her gender identity, regardless of what the dress code dais. However, the Court felt that the EEOC should have taken a less restrictive approach:

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.

Over at the Volokh Conspiracy, Professor Eugene Volokh thoroughly analyzes the court’s decisions and concludes that it is “wrong, but for complicated reasons.” You law nerds may want to check that out.

While this decision may have broader implications than its impact on the transgender community, its long-term viability is unclear. That is, the EEOC will likely appeal to the Sixth Circuit. Plus, this decision is limited, for now, to Michigan. Additionally, for RFRA and Hobby Lobby to apply in the first place, an employer’s religious beliefs must be implicated.