What Recourse Is Available to Religious Employers about LGBTQ Individuals?

            The liberty principle for this Freedom Friday is the fact that some Supreme Court decisions need clarification. Two recent court decisions show how some cases are connected through seeking for illumination. In 2020, the Supreme Court decision in Bostock v. Clayton County expanded the coverage of Title VII of the Civil Rights Act of 1964 – “which prohibits sex discrimination in employment to include discrimination based on sexual orientation and transgender status” (Sarah Parshall Perry). 

According to Perry, the decision did not answer all the questions, “including how to treat religious employers who were faced with claims of employment discrimination brought by LGBTQ employees.” Perry indicated that there was a hint from the Court that “future testing on the issue of employment discrimination in relation to religious employers.”

A Texas federal court saw such a test in its court room late last year – the case of Bear Creek Bible Church & Braidwood Management v. Equal Employment Opportunity Commission.

Bear Creek Bible Church, a Christian church, and Braidwood Management, a Christian-owned health care business, did not wish to hire or retain employees who engaged in gay or transgender conduct. They brought a class action lawsuit against the Equal Employment Opportunity Commission and its commissioners.

They sought to certify two classes of plaintiffs: (1) every employer in the United States that opposes homosexual or transgender behavior for sincere religious reasons (for example, religious employers), and (2) every employer in the United States that opposes homosexual or transgender behavior for religious or nonreligious reasons (all opposing employers).

A judge’s certification of a “class” of plaintiffs can broaden the application of a court ruling significantly – even nationwide.

In their suit, Bear Creek and Braidwood sought declaratory relief from the court, that is, a judgment stating the rights of parties without ordering any specific action or awarding damages.

A party seeking a declaratory judgment is requesting an official ruling on the status of a particular controversy, but no more. Here, the plaintiffs sought a ruling that both sets of plaintiffs were entitled to an exemption form Title VII’s sex discrimination provisions based on their religious beliefs.

Among other things, they asked for a declaration from the court that: (1) the Religious Freedom Restoration Act, the free exercise clause of the First Amendment, and the right to expressive association under the First Amendment compel, either individually or jointly, exemptions to Bostock’s interpretation of Title VII.

The plaintiffs moved for summary judgment, as did the EEOC and its commissioners.

            U.S. District Court Judge Reed O’Connor took the opportunity to “clarify exactly how the Supreme Court’s ruling in Bostock was going to impact religious employers in sex discrimination cases.”

First, he modified the proposed class of religious employers into two “subclasses”: (1) church-type employers, and (2) business-type employers.

Noting that Bear Creek Church and members of the church-type employers subclass operate as true religious nonprofits, O’Connor clarified that such employers tend to explicitly state a religious purpose in their organizational documents and carry out their mission through instruction, prayer, and worship. Therefore, these types of employers were “religious organizations” for purposes the statutory religious exemption in Title VII.

As to Braidwood and the second proposed class of plaintiffs, O’Connor noted that while some businesses incorporated religious values into their business models and are run in accordance with Christian values, they do not qualify as religious institutions for purposes of the religious Title VII exemption. But, O’Connor held, Braidwood was still exempt from Title VII under the First Amendment and the Religious Freedom Restoration Act.

In his ruling, O’Connor determined not only that religious nonprofits can escape Title VII liability for firing, refusing to hire, or taking other adverse job actions against LGBTQ employees, he went further, saying both sets of employers could implement sex-specific dress and grooming codes for men and women, and could require employees to use restroom designated for their biological sex. [Emphasis added.]

            In February, the U.S. Department of Justice (representing the EEOC) filed an appeal to the U.S. Court of Appeals for the Fifth Circuit. Perry indicated that the determination made by the Fifth Circuit Court will “shape the course of civil rights law in America and provide some much-needed direction for religious employers who face claims of sex discrimination by LGBTQ individuals.” However, the Supreme Court will eventually have the final say in the matter of religious employers and LGBTQ individuals.