Even before the Supreme Court ruled in Obergefell v. Hodges that the right to marry is guaranteed to same-sex couples by the U.S. Constitution, a conflict had been brewing between religious traditionalists and LGBT advocates. As more LGBT individuals opened up about their sexual preferences and identities, religious traditionalists became more vocal about their beliefs regarding gender and sexuality.
Predictably, this conflict spilled into the courts with workplace disputes pitting religious freedom against LGBT rights. The following is only a sampling of some of these disputes:
- A funeral employee was terminated after transitioning from male to female. The funeral home owner “sincerely believed that the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit one of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the Funeral Home’s] male funeral directors to wear the uniform for female funeral directors while at work.” EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).
- Citing his Christian beliefs, an employee refused to answer transgender-related questions in his employer’s Ethics Compliance course, and was terminated. Brennan v. Deluxe Corp., 361 F.Supp.3d 494 (D.Md. 2019).
- An employee was terminated by his employer for refusing to sign a certification agreeing to “fully recognize, respect and value the differences among all of us.” Citing his Christian beliefs, the employee believed some behavior and beliefs were deemed sinful by Scripture, and thus, he could not “value” such behavior or beliefs without compromising his own religious beliefs. Buonanno v. AT&T Broadband, LLC, 313 F.Supp.2d 1069 (D.Colo. 2004).
- An employee was terminated for refusing to cease from displaying bible verses condemning sodomy in response to an employer’s diversity campaign posters, which featured gay employees. Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004).
In 2020, the Supreme Court in Bostock v. Clayton County held 6-3 that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects applicants and employees against discrimination because of their sexual orientation and gender identity. As with many opinions, the Court answered one question only to raise new ones. In his dissent, Justice Samuel Alito warned: “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
Among the new questions raised by Bostick are those which frequently arise from workplace disputes pitting religious freedom against LGBT rights. Indeed, it is likely that the Supreme Court will be faced with two such questions sooner rather than later.
I. Can an employer legally refuse to hire or retain a gay or transgender individual if to do so would violate the employer’s religious beliefs?
Predictably, many would presume the answer to this question to be no, citing the 1990 Supreme Court opinion in Employment Div. of Human Resources of Oregon v. Smith. There, the Court framed the reach of the First Amendment bar against laws prohibiting the free exercise of religion. Writing for the 6-3 majority, Justice Antonin Scalia stated: “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
Several events since Smith, however, have made a definitive answer to this question far from certain. In 1993, the Religious Freedom Restoration Act (“RFRA”) was enacted. This Act prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§ 2000bb–1(a), (b).
In 2014 in Burwell v. Hobby Lobby Stores, Inc., the RFRA was put to the test. The owners of three closely held for-profit corporations had sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies under RFRA seeking to enjoin application of the contraceptive mandate of the Affordable Care Act insofar as it required them to provide health coverage for four objectionable contraceptives.
Writing for a 5-4 majority, Justice Samuel Alito opined (1) the mandate was violative of the RFRA, and (2) closely held corporations were entitled to the same protections as individuals under the RFRA.
The majority opinion in Bostick, moreover, was written by Justice Neil Gorsuch, a staunch defender of religious freedom. Even as he was writing that Title VII’s protections extended to sexual orientation and gender identity, he addressed 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 his opinion, in fact, includes 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 First Amendment bar of “claims concerning the employment relationship between a religious institution and its ministers”, and (3) the RFRA’s prohibition against federal government substantially burdening a person’s exercise of religion unless it shows doing so furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.
With the passing of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett, the conservative wing now has a 6-3 supermajority at the Supreme Court. The new court has already been vocal about religious liberty. In Davis v. Ernold, Justice Samuel Alito and Justice Clarence Thomas blasted the Obergefell decision for “leaving those with religious objections [to same sex-marriage] in the lurch” and creating “ruinous consequences for religious liberty.”
Considering its current composition and the road map provided in Bostock, it is unlikely the Supreme Court will be entirely dismissive of religious objections by employers to the LGBT rights provided by Title VII. The only question is how much latitude will be afforded such religious objections.
II. Is an employer legally obligated under Title VII to reasonably accommodate the religious beliefs of an employee regarding sexual orientation and gender identity?
Again, many would presume the answer to this question to be no, citing the 1977 Supreme Court opinion in Transworld Airlines v. Hardison. There, the Court determined the balance to be drawn between (1) an employer’s duty of reasonable accommodation to an employee’s religious beliefs or practices under Title VII, and (2) its ability to avoid this duty by showing “undue hardship.” In this regard, the Court equated “undue hardship” with anything more than a “de minimis cost.”
As shown above, however, Supreme Court jurisprudence regarding religious freedoms has changed in the past 44 years. Another example of this change is the 2018 opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. That case famously pitted the religious beliefs of a Colorado cake maker against a same-sex couple who wanted to purchase a wedding cake. Rather than the merely enforcing Colorado’s LGBT rights law as a general law of neutral application, the Court faulted the Colorado Civil Rights Commission for not providing the cake maker with neutral and respectful consideration of his religious objections.
If the foregoing cases merely raised questions as to whether the Court was prepared to revisit the continued viability of Hardison, the order denying certiorari in Patterson v. Walgreen , a case alleging religious discrimination under Title VII, erased any doubt. In an opinion joined by Justice Clarence Thomas and Justice Neil Gorsuch wrote that the Court “should reconsider the proposition, endorsed by the opinion in … Hardison … that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.”
Citing Justice Alito’s opinion in Patterson, a Petition for Writ of Certiorari is currently before the Court in Small v. Memphis Light Gas & Water. This Petition presents the specific question of whether Hardison should be overruled.
Considering its current composition and recent jurisprudence, it is doubtful the Supreme Court will reject out-of-hand the duty of a secular employer to reasonably accommodate the religious beliefs of an employee regarding sexual orientation or sexual identity. The only question is how far the duty must extend before becoming an undue burden to LGBT rights under Title VII.
Until the Supreme Court provides guidance as to these two questions, secular employers are left to educated guesses as to the proper balance to strike between religious freedom and LGBT rights. Of course, advice of counsel is always recommended in making such educated guesses.
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 email@example.com.