Keep the Government out of the Grieving Process

(Jonathan Ernst/Reuters)
Can the EEOC make a funeral home let a male employee cross-dress at work?

It’s been said that grief is a desert that must be crossed on foot. There’s no shortcut, no hope in somehow expediting the grieving process of a parent, grandparent, sibling, spouse, or child.

When we first heard the news, we knew our world would never be the same. How could it? The days that followed were a blur of emotional turmoil, but even as those days felt endless, there never seemed to be enough time to make all the crucial choices that accompany loss.

It’s moments like these that Tom Rost handles on a daily basis. The grandson of R. G. & G. R. Harris Funeral Homes’ founder, Tom has spent his life coming alongside families in the midst of grief. Tom believes that’s his calling. As he puts it, his company always “attempts to create a transformational experience in order to help our clients, their families, and friends begin the healing process when they have lost a loved one.”

The needs of grieving families always come first for Tom, his family, and his staff. Every single interaction — from discussing burial options to parking cars for mourners — is orchestrated to make sure friends and family have the support they need to begin the grieving process.

One detail that flows out of that desire is the employee dress code at Harris Funeral Homes. During funerals, funeral directors are required to hold to a dress code that anyone would expect: a dark suit and tie for men, and a dark skirt suit for women.

Not only does the dress code at Harris Funeral Homes fit the family-owned company’s heart of service to grieving families, it’s also perfectly within the boundaries of federal employment law under Title VII of the Civil Rights Act of 1964. In fact, the Equal Employment Opportunity Commission’s manual expressly says as much.

That may seem like an odd tangent, but it’s actually relevant to a case that the U.S. Supreme Court just agreed to take up. Because the high court granted Tom’s request for review, R. G. & G. R. Harris Funeral Homes v. Equal Employment Opportunity Commission will consider legal issues that intersect with the Michigan funeral home’s dress code.

What prompted Tom to appeal to the Supreme Court? It was a complaint that a former employee filed with the EEOC. The employee, a male who had worked for the company for over five years, said that he would begin dressing as a woman during work hours as part of a gender transition. But that would have conflicted with the funeral home’s dress code.

Although Tom was well within his legal rights to part ways with the employee, that didn’t stop the EEOC from targeting Tom and his funeral home. The EEOC sued Harris Funeral Homes in an obvious attempt to redefine “sex” in Title VII to mean “gender identity.”

After the U.S. Court of Appeals for the Sixth Circuit backed up the EEOC, Tom was left with no choice but to ask the Supreme Court to weigh in. The case boils down to whether Congress or the courts — or worse, unelected agency officials, such as those at the EEOC — have the power to rewrite federal law.

The EEOC is not alone in its usurping of congressional authority. Agencies and departments across the governmental landscape, as well as courts, are creating a fractured foundation that leaves small-business owners such as Tom Rost at their mercy.

Tom and every other business owner have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. That’s why the Supreme Court should affirm that “sex” refers to an objective reality, not a subjective perception about a person’s own gender.

A win for Harris Funeral Homes means victory for our constitutional form of governance, but for Tom, he’s just looking to best serve the grieving families he cares for each and every day.

David Cortman is the vice president of U.S. litigation for Alliance Defending Freedom, which represents R. G. & G. R. Harris Funeral Homes.

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