The Righteous Stand Bold Like A Lion | Bostock, Religious Organization Employers, And Title VII

• Published date: 06 March 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Freeman Law
• Author: Cory Halliburton

This Insights blog addresses the aftermath of the monumental U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S.Ct. 1731 (June 15, 2020) and the ongoing collision of the right to religious freedom enjoyed by religious organization employers and the civil liberties of individual employees codified in Title VII of the Civil Rights Act of 1964.

Bostock v. Clayton County, in Brief

In Bostock, the Supreme Court held that Title VII's prohibition of discrimination in employment because of an employee's "sex" includes a prohibition of discrimination based on the employee's sexual orientation, including homosexuality or transgender. Justice Gorsuch, writing for a majority of the high Court, opened the opinion with these words:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

The Court in Bostock, noted the statutory exception for religious organizations: "As a result of its deliberations in adopting the law [Title VII], Congress included an express statutory exception for religious organizations. ' 2000e-1(a)." Id. Notably, no "religious corporation" employer was involved in Bostock, and the Court recognized as much in conclusion: "So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way." Id. (emphasis added).

The Supreme Court has not addressed the "other employers in other cases" that the Court alluded to in Bostock. Those cases, to the extent they exist, remain in lower courts, and the scope of religious freedom pursuant to section 2000e-1(a) of Title VII remains unsettled.

Title VII of the Civil Rights Act of 1964 and Its Exceptions for Religious Organizations

Title VII makes it an unlawful employment practice for an employer to fail or refuse to hire or terminate any individual, or otherwise discriminate against any individual, because of the individual's race, color, religion, sex, or national origin. See 42 U.S.C. '2000e-2(a)(1). Title VII applies to, among other classes of employers, private-sector employers with 15 or more employees.

The term "religion," as used in Title VII, "includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." Id. at ' 2000e(j).

Title VII contains exemptions applicable to religious organizations:

[Title VII's anti-discrimination provisions] . . . 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 with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation of its...