The Collision of Title VII and Religious Freedom —The Aftermath of Bostock v. Clayton County for Religious Organizations

I.     Introduction

The contents of this Insights article will be presented at the State Bar of Texas’ 21^st Annual Governance of Nonprofit Organizations (August 31-September 1, 2023). Freeman Law attorney, Cory Halliburton, serves as Course Director for the program and will present this topic for continuing legal education and ethics credits.

The article addresses the aftermath of the monumental U.S. Supreme Court opinion of Bostock v. Clayton County, ––– U.S. ––––, 140 S.Ct. 1731 (June 15, 2020), the ongoing collision of religious freedom enjoyed (or not) by religious organization employers, and the protections afforded individual employees pursuant to Title VII of the Civil Rights Act of 1964.

II.   Title VII of the Civil Rights Act of 1964

It is an unlawful employment practice for a covered 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).

With limited exceptions, a covered employer means a private sector “person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person[.]” See id. at § 2000e(b).

Either the EEOC or an affected employee (if the EEOC declines to act) is statutorily authorized to bring an enforcement action. Id. § 2000e-5(f)(1).

III.  Bostock v. Clayton County, in Brief

In Bostock, the Supreme Court addressed the legal issue of whether “sex,” as that term is used in 42 U.S.C. § 2000e-2(a)(1), includes an employee’s sexual orientation. Justice Neil Gorsuch began the Bostock opinion as follows:

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 out-lawed 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.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Bostock, 140 S.Ct. at 1737.

In line with Justice Gorsuch’s eloquent introduction, a majority of the Court agreed 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.

“‘Title VII protects every American, regardless of sexual orientation or transgender status. It simply requires proof of sex discrimination.’ That was true before Bostock, and it remains true after Bostock. Under Bostock, transgender discrimination is a form of sex discrimination under Title VII. But a plaintiff claiming transgender discrimination under Bostock must plead and prove just that—discrimination.” Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 603 (5th Cir. May 14, 2021), cert. denied, 211 L. Ed. 2d 401, 142 S. Ct. 713 (2021) (quoting Wittmer v. Phillips 66 Co., 915 F.3d 328, 340 (5th Cir. 2019) (Ho, J., concurring)).

The Court in Bostock did not, however, address how or when Title VII and the holding of Bostock may be applied to religious organizations.

IV.  Title VII’s Exceptions for Religious Organizations

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.” See 42 U.S.C. § 2000e(j).

Notably, no “religious corporation” employer was involved in Bostock.

However, the First Amendment of the United States Constitution provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” U.S. Const. amend. 1.  And, Title VII recognizes the religious rights afforded by the First Amendment, and so as not to infringe on that fundamental right, Title VII contains exceptions 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.

42 U.S.C. § 2000e-1(a) (emphasis added).

Similarly, Title VII provides religious educational institutions an exemption from faith-based employment decisions:

[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

42 U.S.C. § 2000e-2(e)(2) (emphasis added).

In Bostock, the Supreme Court was not faced with the opportunity to address the statutory exception for religious organizations, but the Court noted as follows:

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. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. § 2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers. . . .

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.”

Bostock, 140 S.Ct. at 1753-54 (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012)) (emphasis added).

Since Bostock, the Supreme Court has not had the occasion to address 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.

V.    Aftermath of Bostock – EEOC Guidance

Following Bostock, the Equal Employment Opportunity Commission published its Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, which was in supplement to the EEOC’s earlier-promulgated guidance document, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Workers (Apr. 29, 2014) (https://www.eeoc.gov/laws/guidance/preventing-employment-discrimination-against-lesbian-gay-bisexual-or-transgender).

As of August 22, 2023 the Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity guidance was available at https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender.

The EEOC guidance directs employers to recognize same-sex marriage on the same terms as opposite-sex marriage. See U.S. Equal Emp. Opportunity Comm’n, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Workers (Apr. 29, 2014) (https://www.eeoc.gov/laws/guidance/preventing-employment-discrimination-against-lesbian-gay-bisexual-or-transgender) (note, as of August 22, 2023, the website includes the following disclaimer: “As a result of the Supreme Court’s decision in Bostock v. Clayton County, we are currently working on updating this webpage.”). That EEOC guidance document also requires that employers allow employees into restrooms that correspond to the employees’ gender identity, no matter the individual’s biological sex, whether the individual has had a sex-change operation, or whether other employees have raised objections or privacy concerns.

In the Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity guidance, the EEOC provides the following with respect to the collision of Bostock and religious freedom:

Title VII allows “religious organizations” and “religious educational institutions” . . . to hire and employ people who share their own religion (in other words, it is not unlawful religious discrimination for a qualifying employer to limit hiring in this way). Courts also apply a “ministerial exception” that bars certain employment discrimination claims by the employees of religious institutions because those employees perform vital religious duties at the core of the mission of the religious institution. Courts and the EEOC consider and apply, on a case by case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws. For more information on those defenses and other issues related to religious organizations and discrimination based on religion, see EEOC Compliance Manual, Section 12: Religious Discrimination.

The EEOC Compliance Manual, Section 12: Religious Discrimination (as of August 22, 2023 was available at https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination) provides that the “religious organization” exemption to Title VII’s prohibition to religious discrimination “applies only to those organizations whose ‘purpose and character are primarily religious,’ but to determine whether this statutory exemption applies, courts have looked at ‘all the facts,’ considering and weighing ‘the religious and secular characteristics’ of the entity.” Id. at § C.1 (citing Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019); LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 226 (3d Cir. 2007); Killinger v. Samford Univ., 113 F.3d 196, 198‑99 (11th Cir. 1997)) (emphasis added).

While the EEOC guidance remains available and online, the EEOC “guidance” website for Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity expressly states: “In October 2022, a federal district court vacated this document in Texas v. EEOC et al., 2:21-CV-194-Z (N.D. Tex.).” See Texas v. Equal Emp. Opportunity Comm’n, No. 2:21-CV-194-Z, 2022 WL 4835346, at *1 (N.D. Tex. Oct. 1, 2022) (vacating the EEOC guidance).

VI.  Aftermath of Bostock – Judicial Opinions

“The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

Bostock, 140 S. Ct. at 1783 (Alito, J., dissenting) (emphasis added).

Indeed, Justice Alito’s foreshadowing proved true.

Following Bostock, “[c]ourts do not agree on the scope of this [Title VII] exemption or on the entities it covers.” Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 590 (N.D. Tex. 2021), affirmed in part, reversed in part, and remanded by Braidwood Management, Inc. v. EEOC, No. 22-10145, 2023 WL 4073826 (5^th Cir. June 20, 2023); see also Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 598 (5th Cir. May 14, 2021), cert. denied, 211 L. Ed. 2d 401, 142 S. Ct. 713 (2021) (relying on Bostock and noting that “a plaintiff who alleges transgender discrimination is entitled to the same benefits—but also subject to the same burdens—as any other plaintiff who claims sex discrimination under Title VII.”).

Some state courts have expressly rejected the holding in Bostock when applied to state law governing discrimination in employment based on transgender or sexual orientation. Other courts are firm to maintain the confines of Title VII’s laundry list of protected classes. See Stollings v. Texas Tech Univ., No. 5:20-CV-250-H, 2021 WL 3748964, at *11 (N.D. Tex. Aug. 25, 2021) (concluding that the plaintiff “is protected on the basis of sex, which includes sexual orientation in light of Bostock, but sexual orientation does not constitute a distinct class”).

In March 2023, a Louisiana court of appeals refused to apply Bostock’s holding to a claim of sexual orientation brought pursuant to Louisiana’s anti-discrimination-in-employment statute. See Gauthreaux v. City of Gretna, 2023 WL 2674191, No. 22-CA-424 (La. App. 5th Cir. March 29, 2023). In Gauthreax, the court found:

[A]lthough persuasive, our state courts are not bound by Bostock’s interpretation of Title VII in interpreting La. R.S. 23:332. As there is no binding federal or state law or jurisprudence on point, and because the legislature has not seen fit to amend La. R.S. 23:332 to specifically include protection from employment discrimination because of a person’s sexual orientation, we decline to extend Bostock’s reasoning to La. R.S. 23:332 to find that it allows for protection from employment discrimination because of a person’s sexual orientation.

Gauthreaux, 2023 WL 2674191, at *4-5.

In Vroegh v. Iowa Department of Corrections, 972 N.W.2d 686 (Iowa 2022), the plaintiff asserted both sex discrimination and gender identity discrimination for denying plaintiff (born a female and transitioning to male) use of the men’s restrooms and locker rooms and for denying certain healthcare benefit coverage that were provided to non-transgender employees. 972 N.W.2d at 694. The case worked its way to the Iowa Supreme Court, and that court considered whether a lower court erred by submitting a “sex discrimination” instruction to a jury in a case.

The Iowa Civil Rights Act in question prohibited discrimination in employment based on ten specific characteristics, including “sex, sexual orientation, [and] gender identity[.]” Iowa Code § 216.6(1)(a). The Iowa Civil Rights Act did not define “sex,” but it did define “gender identity” as the “gender-related identity of a person, regardless of the person’s assigned sex at birth.” Id. § 216.2(10). Thus, similar to the Supreme Court in Bostock, the Iowa Supreme Court was faced with the question of Does discrimination on the basis of “sex” include discrimination based on a person’s transgender status?

The Iowa Supreme Court answered in the negative. In doing so, the court found Bostock as merely persuasive and expressly rejected its majority opinion:

We disagree with the Bostock majority on this issue and thus reject [plaintiff’s] argument advancing it. Discrimination based on an individual’s gender identity does not equate to discrimination based on the individual’s male or female anatomical characteristics at the time of birth (the definition of “sex”). An employer could discriminate against transgender individuals without even knowing the sex of the individuals adversely affected. But that employer, lacking knowledge of the male or female anatomical characteristics of any of the effected employees, would not (and could not) be engaging in unlawful discrimination based on the individual’s “sex.” We see no reason to jettison the interpretive analysis in [prior Iowa Supreme Court precedent] construing “sex” according to its common usage and to include “transgender” status or other characteristics similarly attenuated from an individual’s male or female anatomical characteristics, particularly considering that the Iowa Civil Rights Act provides separate protections based on gender identity. . . . We effectuate the statute’s “purposes” by giving a fair interpretation to the language the legislature chose; nothing more, nothing less. “Sex” doesn’t expand to “gender identity” (or anything other than “sex”) simply because the statute contains an instruction that it be “construed broadly.” We may not through the judicial metamorphosis of words declare a Hulk where the legislature placed merely Bruce Banner.

Vroegh, 972 N.W.2d at 702 (emphasis added); see also Neese v. Becerra, No. 2:21-CV-163-Z, 2022 WL 16902425, at *8 (N.D. Tex. Nov. 11, 2022) (refusing to apply Bostock’s holding to a claim brought pursuant to Title IX (42 U.S.C. § 18116(a)) and noting, Title IX is not Title VII, and “on the basis of sex” is not “because of sex.”); Mykland v. CommonSpirit Health, No. 3:21-CV-05061-RAJ, 2021 WL 4209429, at *8-9 (W.D. Wash. Sept. 16, 2021) (refusing to apply Bostock to the state of Washington’s Law Against Discrimination due to the state statute’s mutually exclusive definitions of “sex” and “sexual orientation”). But see Maner v. Dignity Health, 9 F.4th 1114, 1122 (9th Cir. 2021), cert. denied, 211 L. Ed. 2d 606, 142 S. Ct. 899 (2022) (refusing to expand the meaning of “sex,” as used in Title VII, to include sexual activity, and finding that a plaintiff’s contention that “sex” means his having sex with a paramour contradicts canons of statutory construction).

Four months after the Bostock opinion was issued, a federal district court in Indiana (which is within the Seventh Circuit Court of Appeals) addressed—in a motion to dismiss procedure (Fed. R. Civ. P. 12(b)(6))—whether a religious school’s decision to not renew an employee’s contract because of her marriage to another woman was actionable under Title VII, Title IX, and Indiana state law, or whether the employer school was exempt from the claims pursuant to 42 U.S.C. § 2000e-1(a). See Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., 496 F. Supp. 3d 1195, 1198 (S.D. Ind. 2020).

The school asserted that the same-sex marriage violated the school’s religious beliefs. The district court found that, based on the pleadings, the employee could maintain the claims because she asserted a claim for sex discrimination, being a distinct protected class from religion-based discrimination. The religious employer immediately appealed, but the Seventh Circuit Court of Appeals dismissed the appeal for lack of jurisdiction. See Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., No. 20-3265, 2021 WL 9181051 (7^th Cir. July 22, 2021). In a later appeal, the Seventh Circuit held that, as a matter of law, the employee in issue was a “minister” for employment law purposes and thus, pursuant to Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), the secular courts lacked jurisdiction to adjudicate the employment-related claims. Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022).

A year after the Bostock opinion was issued, a federal district court in North Carolina denied a Catholic school’s motion for summary judgment assertion of First Amendment privileges in terminating the employment of what the court described as a “gay,” male drama teacher. The court noted:

In this case, Charlotte Catholic High School seeks a variety of First Amendment and statutory protections to enable the school to terminate the employment of a substitute drama teacher—Mr. Lonnie Billard (“Plaintiff”). The school claims that he was fired for his support of gay marriage—something the Catholic Church opposes. Plaintiff claims he was fired, or at least suffered a more severe employment action, because of who he is as a gay man. The Court respects the sincerity of the Catholic Church’s opposition to Plaintiff’s actions. With a slightly different set of facts, the Court may have been compelled to protect the church’s employment decision. However, where as here, Plaintiff lost his job because of sex discrimination and where he was working as a substitute teacher of secular subjects without any responsibility for providing religious education to students, the Court must protect Plaintiff’s civil and employment rights.

Billard v. Charlotte Cath. High Sch., No. 3:17-CV-00011, 2021 WL 4037431, at *1 (W.D.N.C. Sept. 3, 2021) (emphasis added). As of June 16, 2023, the Billard district court decision was pending on appeal in the Fourth Circuit Court of Appeals.

In August 2022, a federal district court in Maryland issued an opinion in the case of Doe v. Catholic Relief Services, 618 F.Supp.3d 244 (D. Md. Aug. 3, 2022), on reconsideration in part, No. CV CCB-20-1815, 2023 WL 155243 (D. Md. Jan. 11, 2023). There, Catholic Relief Services asserted that, as a matter of law, its decision to terminate spousal health insurance benefits to an employee was protected by 42 U.S.C. § 2000e-1(a) because the employee was “a gay man married to another man” and that conduct was forbidden by the Catholic faith. In denying Catholic Relief Services request for relief, the court noted:

A plain reading of § 702(a) [42 U.S.C. § 2000e-1(a)] reveals Congress’s intent to protect religious organizations seeking to employ co-religionists, but the reading urged by CRS would cause a relatively narrowly written exception to swallow all of Title VII, effectively exempting religious organizations wholesale. Had Congress wished to exempt religious organizations in this manner, it could have done so, but it “plainly did not.” Accordingly, Title VII § 702(a) does not apply in this case.

Catholic Relief Services, 618 F.Supp.3d at 253.

More recently is the case of Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571 (N.D. Tex. 2021), affirmed in part, reversed in part, and remanded by Braidwood Management, Inc. v. EEOC, No. 22-10145, 2023 WL 4073826 (5^th Cir. June 20, 2023). There, two Texas employers—Braidwood Management, Inc. (“Braidwood”) and Bear Creek Bible Church (“Bear Creek”)—asserted that Title VII, as interpreted in the EEOC’s guidance and Bostock, prevented Braidwood and Bear Creek from operating their places of employment in a way compatible with their Christian beliefs.

Braidwood was a management company controlled and owned, essentially, by an individual: Steven Hotze (“Hotze”). Hotze operated his companies as “Christian” businesses. Hotze did not permit his companies to employ individuals who engage in behavior Hotze considered sexually immoral or gender non-conforming, nor did he allow the company to recognize homosexual marriage. Braidwood enforced a sex-specific dress code applied to “biological” men and women. “Cross-dressing” was strictly forbidden. See Bear Creek, 571 F. Supp. 3d at 588-89.

Bear Creek was a nondenominational church whose bylaws state that “marriage is exclusively the union of one genetic male and one genetic female.” Bear Creek required its employees to live according to its professed views on Biblical teaching, and the church refuses to hire individuals who are “practicing homosexuals, bisexuals, crossdressers, or transgender or gender non-conforming individuals.” See id. at 587-88.

Braidwood and Bear Creek asked the court to certify a class of similarly-situated “church-type” employers and “religious-type employers” and to declare those employers’ ability to require their employees to live by the teachings of the Bible on matters of sexuality and gender. 571 F. Supp. 3d 571. The plaintiffs requested a religious exemption from, and a declaration that they do not violate, the anti-discrimination provisions of Title VII and the EEOC’s guidance on same so the employer-plaintiffs may make employment decisions in accordance with sincerely held religious beliefs and employment policies.

Braidwood and Bear Creek asserted the following:

1. The Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1, et. seq.) compels exemptions to Bostock’s interpretation of Title VII (“RFRA claim”);

[Note: The RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion” unless the burden furthers a “compelling governmental interest” and is “the least restrictive means of furthering” that interest. 42 U.S.C. § 2000bb-1(a)–(b). Additionally, the federal government “must accept the sincerely held . . . objections of religious entities.” See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, ––– U.S. ––––, 140 S. Ct. 2367, 2383, 207 L.Ed.2d 819 (2020).]

2. The Free-Exercise Clause of the First Amendment compels exemptions to Bostock’s interpretation of Title VII (“free exercise claim”);
3. The First Amendment right of expressive association compels exemptions to Bostock’s interpretation of Title VII (“expressive association claim”);
4. Title VII, as interpreted in Bostock, does not prohibit discrimination against bisexual employees (“bisexual orientation claim”); and
5. Title VII, as interpreted in Bostock, does not prohibit employers from establishing sex-neutral rules of conduct that exclude practicing homosexuals and transgender people from employment (“sex-neutral rules of conduct claim”).

The EEOC and party-plaintiffs’ moved for summary judgment on various grounds, including standing, ripeness, class-certification, and on the merits.

The district court granted summary judgment in favor of the religious-business-type employer class for claims 1–3, finding that the class was protected under RFRA and the First Amendment.  For the RFRA claim, the district court determined that Title VII substantially burdened the class members and that the EEOC did not have a compelling interest in failing to provide a religious exemption to all class members.  For the free exercise claim, the district court ruled that strict scrutiny applied and that the EEOC had not shown a compelling interest in light of Title VII’s exemptions or, in the alternative, that Title VII was not sufficiently narrowly tailored.  See Bear Creek, 571 F. Supp. 3d at 589-94.

The district court ruled that the members of the religious-business-type-employers class engaged in expressive association and therefore had a right not to associate with persons engaging in homosexual or transgender conduct. The court determined, as a matter of law, that the sex-neutral policies of both classes pertaining to sexual conduct, dress codes, and bathrooms did not violate Title VII. See id. at 607-12.

The court granted summary judgment in the EEOC’s favor on the entirety of claim 4 regarding bisexual orientation and employer policies regulating sex-reassignment surgery and hormone treatment for claim 5.

In its opinion, the district court noted:

The text of the exemption does not provide religious employers a blanket exemption to Title VII’s prohibitions. If it did, the text would simply say it does not apply to religious employers.  Instead, it exempts those religious employers who hire employees to perform work connected with the carrying on of its activities or mission. Importantly, the Title VII exemption defines the term “religion” to include “all aspects of religious observance and practice, as well as belief.” Read plainly then, Title VII does not apply to religious employers when they employ individuals based on religious observance, practice, or belief. The plain text of this exemption, therefore, is not limited to religious discrimination claims; rather, it also exempts religious employers from other forms of discrimination under Title VII, so long as the employment decision was rooted in religious belief.  In other words, Title VII’s prohibition “shall not apply” to religious employers who desire to “employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.”  Thus, a religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

Bear Creek Bible Church, 571 F. Supp. 3d at 590-91 (internal citations omitted; emphasis added). The district court basically held that Braidwood and Bear Creek established a sufficient justiciable interest or “credible fear” of EEOC enforcement, conferring standing, and found that the issues were ripe for adjudication.

Braidwood, Bear Creek, and the EEOC appealed.

On June 20, 2023, the Fifth Circuit Court of Appeals issued its opinion in the case. See Braidwood Management, Inc. v. EEOC, No. 22-10145, 2023 WL 4073826 (5^th Cir. June 20, 2023). The Fifth Circuit court affirmed “in large part,” reversed in part, and remanded. The court found that Braidwood and Bear Creek had standing to seek a declaration of Title VII as applied to the party-plaintiffs, despite no enforcement actions being asserted by the EEOC or any individual affected by the undisputed employment practices. The Fifth Circuit affirmed the district court’s refusal to certify a class of “church-type employers,” but the Fifth Circuit reversed the lower district court’s “religious-business type employers” class certification. See id. at *7-18.

As to the merits, the Fifth Circuit held that RFRA requires that Braidwood be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden Braidwood’s ability to operate per its religious beliefs about homosexual and transgender conduct. The EEOC failed to show a compelling interest in its application of its Guidance and Bostock. The court stated as follows:

Because sincerity is not at issue, Braidwood must show that applying Title VII substantially burdens its ability to practice its religious faith. Braidwood maintains that it has sincere and deeply held religious beliefs that heterosexual marriage is the only form of marriage sanctioned by God, pre-marital sex is wrong, and “men and women are to dress and behave in accordance with distinct and God-ordained, biological sexual identity.”  To that end, the EEOC guidance almost assuredly burdens the exercise of Braidwood’s religious practice.  . .

As the district court succinctly put it, “[E]mployers are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” We see no reason why that formulation is incorrect. Being forced to employ someone to represent the company who behaves in a manner directly violative of the company’s convictions is a substantial burden and inhibits the practice of Braidwood’s beliefs. . . .

Per EEOC guidance, Braidwood, to comply, must violate its beliefs: No money needs to exchange hands; instead, Braidwood’s employment policies must broadly change, and it must tacitly endorse homosexual and transgender behavior. The EEOC’s euphemistic phrasing that “the only action that Braidwood is required to take under Title VII is to refrain from taking adverse employment actions” is tantamount to saying the only action Braidwood needs to take is to comply wholeheartedly with the guidance it sees as sinful. That is precisely what RFRA is designed to prevent. . . . [The EEOC] does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimination in every potential case. Moreover, even if we accepted the EEOC’s formulation of its compelling interest, refusing to exempt Braidwood, and forcing it to hire and endorse the views of employees with opposing religious and moral views is not the least restrictive means of promoting that interest. We affirm the summary judgment here.

Braidwood Management, Inc., 2023 WL 4073826 at *19; see Bostock, 140 S. Ct. at 1754 (noting that RFRA “might supersede Title VII’s commands in appropriate cases.”).

VII. Determining “Religious Organization” Status for Title VII Exception

As a general rule, it does not violate the First Amendment to apply federal employment discrimination laws to churches and other religious employers. Ference v. Roman Cath. Diocese of Greensburg, No. 2:22-CV-797-NR-MPK, 2023 WL 3300499, at *2 (W.D. Pa. May 8, 2023). Churches, for example, are not generally exempt from federal employment discrimination laws as applied to their non-ministerial employees. But see Hosanna-Tabor Evangelical Lutheran Church & Sch., 565 U.S. at 196 (finding that the First Amendment prohibits courts from adjudicating employment-related claims asserted by a “minister” as defined by judicial opinions for employment law purposes).

Ministers aside (and circling back to the statute), 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 activities.”  42 U.S.C. § 2000e-1(a) (emphasis added). As noted above, certain religious educational institutions enjoy similar exception from Title VII’s anti-discrimination prescriptions. See id. at § 2000e-2(e)(2).

The pivotal questions in cases where Bostock and a Title VII religious organization exception may be applicable are, essentially:

1. Is the employer a religious corporation, association, educational institution, or society?
2. Is the employment connected with the carrying on the religious activities of by such corporation, association, educational institution, or society?
3. And, for religious educational institutions, is the institution, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious organization, or is the curriculum directed toward the propagation of a particular religion?

So, the question remains: What is a religious organization for these statutory exceptions?

As in most matters that touch on First Amendment principles, Title VII provides no definition of “religious corporation, association, or society,” although the statute provides a definition for “religion”. See 42 U.S.C. § 2000e(j) (defining “religion”).

In Hall v. Baptist Memorial Health Care Corp., 215 F.3D 618 (6th Cir. 2000), the court applied a wholistic review of the educational institution employer in question, including its “atmosphere” that “permeated with religious overtones.” In upholding a lower district court’s finding that the institution in issue was entitled to the exception from Title VII’s religious discrimination prohibition, the Sixth Circuit Court of Appeals stated: “The decision to employ individuals ‘of a particular religion’ under § 2000e-1(a) . . . has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Id. at 625. But see O’Connor v. Lampo Group, LLC, No. 3:20-cv-00628, 2021 WL 4942869, *7 n.8 (M.D. Tenn. Oct. 22, 2021) (noting that the verbiage quoted above from Hall is “regrettably phrased so as to render its meaning obscure.”).

The courts within the Fifth Circuit Court of Appeals likewise offer no specific framework in regard to the exemptions set forth in 42 U.S.C. § 2000e-1(a). See Aguillard v. La. Coll., 341 F. Supp. 3d 642 (W.D. La. 2018) (stating “With regard to the Title VII exemptions, the Fifth Circuit has not offered specific guidance.”).

On the whole, however, the courts consider a non-exclusive number of factors in determining whether an employer entity is a religious organization within section 2000e-1(a) or a religious educational institution within section 2000e-2(e)(2):

1. whether the entity is supported and controlled by a religious corporation;
2. whether the entity was founded by sectarian persons or entities;
3. the atmosphere of the entity;
4. the nature of the entity;
5. whether the entity’s facilities are decorated with religious images;
6. whether regular religious ceremonies and practice are observed;
7. whether the entity operates for a profit;
8. whether the entity produces a secular product;
9. whether the entity’s articles of incorporation or other governing documents state a religious purpose;
10. whether the entity holds itself out to the public as secular or sectarian.

See EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), cert. denied, 453 U.S. 912 (1981); Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192- 94 (4th Cir. 2011); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3rd Cir. 2007) (holding that “LJCC was entitled to the protection of [42 U.S.C. § 2000e-1(a)] during the period under scrutiny because its structure and purpose were primarily religious.”); Hall, 215 F.3d at 624 (stating that the court must look at all the facts to decide whether the institution is a religious corporation or educational institution); Ference, 2023 WL 3300499, at *2; Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d at 591; Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F.Supp.2d 1021, 1034-35 (N.D. Iowa 2006).

VIII. Summation

The consequences of the Bostock decision were not unexpected. In fact, Justice Alito’s dissenting opinion in Bostock alluded to the struggles that the lower courts would face. See Bostock, 140 S. Ct. at 1783 (Alito, J., dissenting).

The lower courts are still grappling with the confines of Bostock and its application (if any) to the varying state anti-discrimination statutes and in other statutory regimes that reference “sex” as a protected characteristic, class, or qualifier.

Employers who believe they qualify for a religious organization exemption from Title VII’s prohibition of religious discrimination or exemption as permitted by the RFRA should carefully consider application of the statutory exceptions and Bostock and its progeny. Religious organizations should carefully craft, adopt, evaluate, and honor statements of faith, governing documents, employment policies, employee acknowledgements, job descriptions, mission statements, and other matters that form the foundation of a religious organization’s ability to stand bold behind the exception to Title VII’s prohibition against discrimination based on religion and to exercise, freely, the religious freedom guaranteed by the U.S. Constitution.

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