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 activities.
Id. at § 2000e-1(a) (emphasis added). Similarly, 42 U.S.C. § 2000e-2(e)(2) provides religious educational institutions an exemption from religiously-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.
Following Bostock, the Equal Employment Opportunity Commission published its Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity. There, the EEOC provides the following guidance 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 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).
Factors to Consider for Determining “Religious Organization” Status
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 the 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):
- whether the entity is supported and controlled by a religious corporation;
- whether the entity was founded by sectarian persons or entities;
- the atmosphere of the entity;
- the nature of the entity;
- whether the entity’s facilities are decorated with religious images;
- whether regular religious ceremonies and practice are observed;
- whether the entity operates for a profit;
- whether the entity produces a secular product;
- whether the entity’s articles of incorporation or other governing documents state a religious purpose;
- 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); Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 591 (N.D. Tex. 2021); Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F.Supp.2d 1021, 1034-35 (N.D. Iowa 2006).
Aftermath of Bostock
“Courts do not agree on the scope of this [Title VII] exemption or on the entities it covers.” Bear Creek Bible Church, 571 F. Supp. 3d at 590.
Four months after the Bostock opinion was issued, a federal district court in Indiana (which is within the Seventh Circuit) 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 (7th 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). The Billard district court decision is pending on appeal in the Fourth Circuit Court of Appeals.
In Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571 (N.D. Tex. 2021), a Christian church—pursuant to 42 U.S.C. § 2000e-1(a)—and a Christian-owned business—pursuant to the Religious Freedom Restoration Act (42 U.S.C. § 2000bb, et. seq.)–asked the court to certify a class of similarly-situated religious 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. The church and business requested a religious exemption from, and a declaration that they do not violate, the anti-discrimination provisions of Title VII so they may make employment decisions in accordance with sincerely held religious beliefs and employment policies. In ruling on the EEOC’s motion to dismiss based on ripeness and challenge to the requested class certification, 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 rulings in Bear Creek Bible Church appear to be pending on appeal.
More recently, a federal district court in Maryland issued an opinion in the case of Doe v. Catholic Relief Services, No. CV CCB-20-1815, 2022 WL 3083439 (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 summary judgment 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.
The consequences of the Bostock decision, as illustrated above, were not unexpected. Rather, they were almost certain to occur given the strength and importance of religious freedom guaranteed by the First Amendment. Employers who believe they qualify for a religious organization exemption from Title VII’s prohibition of religious discrimination should carefully consider application of the statutes, Bostock, and its progeny. Religious organizations should evaluate governing documents, employment policies and practices, employee acknowledgments, job descriptions, mission statements, and other matters that will–in the eyes of a secular court– 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.