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Queer Discrimination in the Workplace | What do the changes to Title VII mean for my religious business?

Updated on
April 7, 2021
Article written by
Attorney Carlos F. Cisneros Vilchis

Title VII has been expanded to cover the rights of queer and transgender employees. What does this mean for religious businesses?  

With the issuance of the decision in the case of Bostock v. Clayton County, Georgia that held that queer and transgender employees are covered under anti-discrimination statutes on the basis of sex, many employers with deeply held religious beliefs or actual religious entities may be left wondering: can the government force someone to violate a deeply held religious belief? This article will discuss the following information:

  1. What are the rights of employers with closely held religious beliefs?  
  1. Can a company that is not owned by a single family or individual have closely held religious beliefs?
  1. Can I deny employment/tenancy against queer and transgender individuals because my religious beliefs do not allow me to provide for it?

It is advisable to avoid dismissing employees because of protected characteristics. If you have any questions about employment related matters, please give O’Flaherty Law a call at 630-324-6666 to schedule some time to speak with one of our attorneys that are skilled in employment law.

What are the rights of employers with closely held religious beliefs?  

Religious employer such as churches, church schools, religious schools, parishes, etc., are generally exempted from employment law on the basis that the Government cannot infringe on how to operate their religious institution. This has been generally termed the ministerial exception. The Courts have generally held that clergy members cannot bring claims under federal anti-discrimination laws. Most recently, in the case of Our Lady of Guadalupe v. Marrisey, the Supreme Court held that the First Amendment forecloses the adjudication of discrimination statutes when a religious employer chooses to fire or demote an employee with ministerial duties. There are four circumstances that may lead to deciding whether an employee is a minister or not: 1. Their title; 2. The degree of religious training necessary to obtain said position; 3. If the employee holds themselves out to the community and government as a minister and seeks ministerial privileges; and 4. Whether the employees job duties reflect a role in conveying the Church’s message and carrying its mission. Not all employees for religious organizations will fit this narrow criteria, so religious employers should be wary when making employment decisions.

For secular businesses whose owner(s) have deeply held religious beliefs and are either individually or family owned, they may have defenses against charges of discrimination under the federal or state Religious Freedom Restoration Act (RFRA). The RFRA protects conscientious employers by giving them a tool to challenge federal oversight to avoid violating their closely held religious beliefs. An employer must first show that complying with a generally applicable law would result in a substantial burden to the employer’s religious exercise. Then, the burden then shifts to the government to establish that applying the neutral law to the employer is the least restrictive means of furthering a compelling government interest. The RFRA is not a perfect shield, and employers should be mindful of relying upon the RFRA when it comes to gay or transgender employees. For instance, the 6th Circuit Court of Appeal decision that was upheld in the case of Bostock v. Clayton County, GA held that the RFRA did not provide a defense against the charge of discrimination being levied because Title VII (the antidiscrimination statute) is the least restrictive way to ensure that the compelling government interest of disallowing discrimination continues.  

Can a company that is not owned by a single family or individual have closely held religious beliefs?  

For secular businesses that are either publicly traded or have several owners, it is unlikely that they will receive or qualify for a RFRA defense. The Supreme Court in its Burwell v. Hobby Lobby decision stated that publicly traded employers and corporate giants generally do not attempt to bring up religious arguments because the idea of institutional investors all agreeing on running a corporation utilizing the same religious beliefs is improbable. A corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Public corporations and corporations with multiple owners to qualify for RFRA would have to show that they all have the same closely held religious belief, and that they are not bringing this argument solely for financial reasons. This makes a public corporation very unlikely to utilize a RFRA defense.

Meanwhile, public employers, actors, and entities, are unlikely to receive a religious defense. Governmental institutions in the US do not have a religious purpose or vision.  

Can I deny employment/tenancy against gay and transgender individuals because my religious beliefs do not allow me to provide for it?  

The Biden Administration recently promulgated Executive Order 13988, that will expand the Supreme Court’s Bostock v. Clayton County, GA rationale to other anti-discrimination statutes, including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations. Discriminating against a tenant because they are gay or transgender may be considered to be discrimination “because of . . . sex.” It may be inadvisable to couch the reasons for the dismissal of the tenant, employee, or student on reasons relating to their gender orientation or identity to avoid running afoul of this executive order. However, the same reasoning as above may apply. If a business with a single owner or closely held family corporations seeks to take adverse action due to gender orientation or gender identity because of their closely held religious beliefs, they may have a valid defense based on RFRA.

If you have any questions about employment related matters, please give O’Flaherty Law a call at 630-324-6666 to schedule some time to speak with one of our employment law attorneys.

Queer Discrimination in the Workplace | What do the changes to Title VII mean for my religious business?
Author

Attorney Carlos F. Cisneros Vilchis

Carlos specializes in the intersectionality of immigration law, employment law, agricultural law as it pertains to employment, and contracts.

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