In deciding Bostock, the Court considered a trio of cases: two involving gay men – Gerald Bostock, who was fired from his job as a child welfare advocate in Clayton County, Georgia, and Donald Zarda, who was fired as a skydiving instructor in New York – and one involving a transgender woman. All three plaintiffs were longtime employees who were fired shortly after their employer learned of their orientation or gender identity—this was allegedly the only basis for the employee’s termination. Much of the attention surrounding Bostock has focused on Aimee Stephens, a transgender woman who was fired from her job as a funeral director in Michigan after notifying her employer that she intended to “live and work full-time as a woman.”

Stephens began working at R.G. & G.R Harris Funeral Homes, Inc. as an apprentice before becoming a funeral director/embalmer. During her employment, Stephens presented as a man and used her then-legal name, William Stephens. Before departing on a vacation, Stephens gave her employer a letter that stated that she had struggled with “a gender identity disorder” her entire life, and that she had “decided to become the person that [her] mind already [was].” As part of this decision, she informed her employer that, after her vacation, she would return “as [her] true self…in appropriate business attire.”
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Though her employer was not religiously affiliated, the owner stated that he had been “called [by God] …to serve grieving people” and that his life’s purpose was “to minister to the grieving.” In line with his faith, he informed Stephens that her proposal was “not going to work out” and fired her. In the underlying case, her employer testified that he believed that “permit[ting] one of [the funeral home’s] male funeral directors to wear the uniform for female funeral directors at work” would make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

In the cases before the Supreme Court, all three employers acknowledged that they had terminated their employees for being homosexual or transgender, a fact many plaintiffs often struggle to establish in court. The employers argued, however, that Title VII’s bar on some forms of employment discrimination did not prohibit them from taking such an action.
Passed in 1964, Title VII prohibits an employer from discriminating against an individual “because of [the] individual’s race, color, religion, sex, or national origin.” Under the law, to “discriminate against” means to treat an individual employee worse than other employees who are otherwise similarly situated to the employee. By prohibiting discrimination “because of” sex, for example, the law prohibits sex from being a “but-for” cause of the employer’s action. That is, the employer would not have taken the adverse action in the absence of, but-for, the employee’s classification (i.e., sex). In sum, the law prohibits an employer from considering an employee’s sex when taking an adverse employment action (e.g., firing the employee). This is true even if sex is not the sole or even primary cause of the adverse action—the law prohibits sex from being a factor at all.

Though the law does not explicitly identify “sexual orientation” or “gender identity” as protected categories, in Bostock, the Supreme Court determined that discrimination based on these categories was prohibited by Title VII because it is impossible to separate them from sex: an employer who fires an employee for being homosexual or transgender necessarily and intentionally does so, at least in part, based on the employee’s sex. This is so, the Court stated, because in taking its action, the employer is applying sex-based rules or stereotypes, and, thus, is discriminating based on sex. To explain the concept, the Court used the example of two employees who are both attracted to men. In the employer’s eyes, the employees are nearly identical in all respects except one is a man and the other a woman. If the employer fires the male employee for no other reason than the fact that he is a man that is attracted to men, the employer has necessarily discriminated against the male employee for exhibiting traits or actions that it tolerates in the female colleague. This is prohibited by Title VII.
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The Court acknowledged that several questions remained unanswered by its decision; most notably, the boundaries between Title VII and the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burdening” a person’s exercise of religion in many cases. Aimee Stephen’s employer initially raised the law but did not appeal an earlier, adverse lower court ruling to the Supreme Court.

In some parts of the country, Bostock should have little practical effect: 22 states already had laws in place that prohibited discrimination based on sexual orientation or gender identity. The ruling, however, now removes any doubt about Title VII’s applicability and prohibits discrimination based on sexual orientation or gender identity at all entities covered by the law; generally, “employers” with at least fifteen employees.
Though each workplace is different, following the Court’s ruling, employers should take a moment to:

REVIEW PRACTICES.
Review practices, policies, and procedures (including employee handbooks) to ensure that they reflect the current law. If not already explicit, anti-discrimination and anti-harassment policies should be revised to specifically prohibit discrimination on the basis of sexual orientation or gender identity.

REVIEW UNIFORM REQUIREMENTS.
In a lower court opinion, it was noted that Aimee Stephens had been fired after notifying her employer that she would begin wearing a skirt, and her employer testified that he disagreed with Stephens’ decision to “dress like a woman,” and fired her, in part, because of it. Though not expressly addressed by Bostock, the opinion indicates that gender-specific uniforms or workplace attire requirements will likely be viewed skeptically.

TRAIN WORKERS.
Ensure that employees, especially managers and supervisors, have been trained regarding anti-discrimination and anti-harassment policies and will act to stop discrimination in the workplace. Employers can be held vicariously liable for the actions of their employees. If a supervisor objects or refuses to ensure that the workplace remains free of discrimination, employers should consider whether the risk of creating a demoralized or hostile workplace, or the risk of litigation, is worth the supervisor’s continued employment.

EXAMINE EMPLOYEE BENEFITS.
​Less formal benefits should be reviewed. In a lower court opinion, it was noted that Aimee Stephens’ employer provided clothing allowances to public-facing male employees but did not provide an allowance for public-facing female employees. Employers should ensure that benefits such as these are equally available regardless of gender.

Explaining that what separates good content from great content is a willingness to make a statement by using humor and pushing the envelope, Lindsey started with a look at some creative, out-of-the-box ads from fellow funeral professionals. In this commercial from French Funerals, a woman in mourning black contemplates choosing the right coffee can for her mother’s ashes. It’s hard, you see, because her mother preferred tea. Such a difficult decision could have been avoided, the commercial warns, with a little advance planning.

In a similar vein, a French Canadian cemetery ad depicts an urn reposing on the shelf in the garage, in a closet, and in a tool shed, asking if this was truly anyone’s final wish. It touches two ideas, 1) that many people have occupied urns sitting at home, and 2) they likely feel guilty about it or want a suggestion of what to do with them. So this ad suggests a solution that puts concerns to rest.

Lindsey’s own company recently hired a professional to create a commercial that incorporates the funeral home therapy dog, Fletcher. Not only do people love Fletcher when they visit the funeral home, but having animals involved always attracts notice. So much so that CANA Member Heffner Cares reached out to their local therapy alligator, Allie, for a visit and a video. These videos show the funeral home, the staff, and something that makes their business unique – with a bit of humor.

These work best, Lindsey says, because we’re selling experiences, not products. And not just the chance to cuddle with a dog (or an alligator!), but to create a memorial that makes a memory for a family. We have to remember that in our campaigns.
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The Portuguese funeral home Funalcoitão shows how they work to do “more than burials. We pay tribute.” Their commercial features personal touches with the narrator describing how the smiling deceased had wanted to be commemorated in just that way – pulled by a donkey, showered in confetti, surrounded by loved ones.

Gracie Griffin of Bellefontaine Cemetery talked about the cemetery’s Facebook campaigns developed in partnership with a marketing firm who specializes in social media campaigns. Together, they set three goals and designed three campaigns to achieve them. The first was to grow their Facebook followers, and, from that campaign, they discovered that, of the options, mausoleum photos were the most successful – go figure.

For the second goal, to grow their email list, Gracie wrote an ebook on green burials. Designed as an inbound marketing campaign, people needed to enter their contact information to get their free download. And lastly, to encourage tourism and engage their community, they quiz people on the celebrities buried in their cemetery based on a few facts and a silhouette. Correct answers in the comments don’t deter others from answering – everyone wants to be seen as smart in their groups!

No matter how you approach your marketing, it’s always important to try something new.

At CANA, we love group brainstorming discussions to answer strategic questions about the next summit we want to reach. Lindsey and Welton left a few questions to fuel your next brainstorming staff meeting and help you refine your market strategy: