As analyzed in a previous post on this blog, the Supreme Court opinion in Bostick v. Clayton County, 140 S.Ct. 1731 (2020), was a mixed bag for LGBT rights under Title VII of the Civil Rights Act of 1964 (“Title VII”). Even as Justice Neil Gorsuch was writing that Title VII’s protections extend to sexual orientation and gender identity, he acknowledged the religious implications of the decision:
“Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”
Much of Justice Gorsich’s opinion, in fact, is a road map for future religious challenges to LGBT claims under Title VII, including (1) Title VII’s statutory exception for religious organizations, (2) the Religious Freedom Restoration Act (“RFRA”); and (3) the First Amendment.
This road map was put to the test in a declaratory judgment class action lawsuit brought in the U.S. District Court for the Northern District of Texas by Bear Creek Bible Church and Braidwood Management, Inc. (“Braidwood”) against the U.S. Equal Employment Opportunity Commission (“EEOC”) and the EEOC Commissioners. In this lawsuit, the plaintiffs seek to draw a distinction between the status of gay or transgendered individuals, which they apparently do not oppose on religious grounds, and the conduct of gay or transgendered individuals, which they do oppose on religious grounds.
For plaintiff Braidwood, a Christian-owned health care company, a declaratory judgment was sought that the following employment policies were not barred by Title VII:
- A policy against employing “individuals who are engaged in homosexual behavior or gender-non conforming conduct of any sort”;
- A policy against recognizing “same sex marriage” or extending “benefits to an employee’s same sex partner”;
- A policy that “requires men and women to wear professional attire according to their biologically assigned sex”;
- A policy which does not permit employees “to use a restroom designated for members of the opposite sex – regardless of the gender identity the employee asserts.”
Cross motions for summary judgment were decided in an October 31, 2021 Memorandum Opinion and Order by U.S. District Court Judge Reed O’Connor. As to Braidwood, the opinion can be divided into five parts:
I. Title VII Exemption For Religious Organizations
Title VII provides that the Act “shall not apply to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. § 2000e-1(a).
Justice O’Connor found Braidwood did not qualify under this exemption. He specifically opined: “That Braidwood incorporates religious values and practices into its business model is persuasive, but its ‘characteristics … taken together’ do not point to the conclusion that Braidwood is a religious organization for purposes of the Title VII exemption.”
II. The RFRA
The RFRA “prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion … except that the … burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). In Burwell v. Hobby Lobby, Inc., 573 U.S. 682 (2014), the U.S. Supreme Court confirmed the application of the RFRA to owners of closely-held corporations.
Justice O’Connor found that Title VII was a substantial burden to Braidwood because it required it “to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” He also found that the EEOC had not showed a compelling governmental interest in “denying employers like Braidwood a religious exemption.” He further said:
“But even if their broad formulation of their interest in ‘preventing all forms of discrimination’ were sufficient, Defendants have not selected the least restrictive means. Forcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest, especially when Defendants are willing to make exceptions to Title VII for secular purposes.”
Accordingly, Justice O’Connor ruled in favor of Braidwood as to its RFRA claims.
III. Free Exercise Clause of First Amendment
The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [emphasis added].”
As to the Free Exercise Clause, Justice O’Connor ruled in favor of Braidwood. In this regard, he explained:
“The Court does not doubt that Defendants’ interests in preventing discrimination against homosexual and transgender individuals is ‘a weighty one, for our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’ [citation omitted]. But broadly formulated government interests are not sufficient to withstand a First Amendment challenge. The creation of a system of exceptions under Title VII undermines Defendants’ contention that … non-discrimination policies ‘can brook no departures.’ [citations omitted]. Defendants offer ‘no compelling reason why it has a particular interest in denying an exception to [the Religious Business-Type Employers] while making them available to others [citation omitted].’”
IV. Freedom of Association Under First Amendment
In Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984), the U.S. Supreme Court observed that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Also, “freedom of association plainly presupposes a freedom not to associate.” Boy Scouts of America v. Dale, 530 U.S. 640, 647-48 (2000). The Supreme Court thus “concluded that the forced inclusion of a gay-rights as an assistant scout master would impair the expressive association rights of the Boy Scouts” the values of which are inconsistent with homosexual conduct.
As to the freedom of association under the First Amendment, Justice O’Connor again ruled in favor of Braidwood. He found that Braidwood has documented and publicly expressed their opposition to homosexuality and transgender conduct. He also opined:
“For the same reasons that Defendants do not have a compelling state interest in forcing an organization to retain, as a scoutmaster, a member who is a gay rights activist, Defendants do not have a compelling interest in forcing Religious Business – Type Employers to hire and retain individuals that engage in conduct that is contrary to the employers’ expressive interests. The Government can no more force an association that opposes homosexuality or transgender behavior to hire individuals engaged in that conduct than it can force a gay-rights organization to hire an avowed opponent of homosexuality.”
Braidwood also sought a declaratory judgment that its dress code and restroom policies were gender-neutral and thus did not violate Title VII. Justice O’Connor agreed that “[u]nder Braidwood’s sex specific dress code, both men and women must abide by equally professional, but distinct, standards.” Accordingly, he found that “Title VII does not prohibit sex-specific dress codes.”
Justice O’Connor also agreed that “[l]ike sex specific dress codes, sex-specific bathrooms do not treat one sex worse than the other.” Accordingly, he found that “employers may have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.”
As with any case of first impression, this decision is likely to draw tremendous scrutiny not only as to the analysis employed by Justice O’Connor, but also as to the failures of the EEOC in not presenting a stronger defense. This much is certain; the decision will not be the last word in the fight between religious rights and LGBT rights in the workplace. As noted in the previous post on this blog, it will likely be up to the Supreme Court to rule on many of the issues in this decision.
Robert G. Chadwick, Jr. frequently speaks to employers and non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at firstname.lastname@example.org.