correction: An earlier version of this column incorrectly stated that the Equal Employment Opportunity Commission had changed its position that Title VII of the Civil Rights Act protects people from discrimination on the basis of gender identity. While the Justice Department has filed a brief arguing that the agency's position is wrong, the EEOC has not retracted its legal theory. This version has been corrected.
Thomas Rost is the owner of R.G. & G.R. Harris Funeral Homes, which Alliance Defending Freedom will represent before the U.S. Supreme Court next term.
There is no time in life more difficult than after you lose a loved one. For more than 100 years, my family has had the honor of coming alongside those in grief, helping thousands of families in Detroit begin the journey toward healing.
Now, my family’s livelihood and our legacy hang in the balance before the Supreme Court, and what it decides could impact small business owners across the country.
Our company — R.G. & G.R. Harris Funeral Homes — has a professional code of conduct and sex-specific dress code to ensure that families can focus on processing their grief. In 2007, we hired a biologically male employee to serve as a funeral director based on that employee’s promise to follow those codes. Six years later, the employee gave me a letter expressing an intent to start dressing and presenting as a woman when working with grieving families.
I felt deep concern for the employee. I care about all the people who work for me; they’re part of my family, and I want the very best for all of them. I spent a few weeks thinking over what the proposal meant for other employees and our clients.
Funeral directors are a central, highly visible part of our work. Funeral directors are often the first people you meet after a loved one has died. Because we’re interacting with families at such an emotional and spiritual time, it is essential that we blend into the background so the family can focus on its grief.
The grieving process is a difficult journey, so it’s critical to start it out right. For my grandfather, who started serving grieving families with a horse-drawn hearse when he was just 18 years old, the needs of a suffering family always took priority, and that meant working with families — 24 hours a day, seven days a week — to arrange a funeral. My grandmother, who during the 1930s became one of the first female licensed funeral directors in Michigan, followed the same call to excellence.
In that spirit, my grandfather made a change to the Harris dress code in 1915, which was forward-thinking in his time. He did away with the so-called Prince Albert suit, which you might find in a Charles Dickens novel, making Harris one of the first funeral homes in the country to require its employees to wear the more modern morning suit. It was a change to promote “appearance, dignity, and propriety.”
Strange to think, but after all these years, it’s a dispute over the Harris dress code that will place our small family business before the Supreme Court this fall. Our long-held, gender-specific dress code requires male funeral directors to wear dark suits and female funeral directors to wear dark skirt suits when interacting with families at funerals we host. It’s key to our work, standard in our industry and fits squarely within the guidelines of the Equal Employment Opportunity Commission (EEOC), which allows businesses such as mine to “require male employees to wear neckties” and “female employees to wear skirts or dresses.”
After much thought in processing the letter I received six years ago, I determined we could not go along with what it proposed. The focus of our business and our policies needed to remain on respecting the needs of the grieving families we serve.
Even though I followed the law in applying my dress code to my employees, the EEOC sued us, using our family business as a pawn to achieve a larger political goal.
Though the government now argues that the EEOC was wrong and supports us, the American Civil Liberties Union has intervened and continues to insist that my family and I must be punished, redefining the meaning of “sex” under federal law in the process. The potential effect of such a decision on small businesses such as mine could be enormous.
In the past century, my family’s business has survived two world wars, the Great Depression and a decades-long economic downturn in the city our family has called home. Through it all, we’ve been ready to help.
Can we continue to serve families in the future? Only time, and the Supreme Court, will tell.