The Supreme Court handed down a landmark decision on LGBTQ workplace rights this week.

Earlier this week, the Supreme Court handed down a victory for LGBTQ workplace rights in the United States. You may read the text of the decision at the following link: https://www.scotusblog.com/wp-content/uploads/2020/06/17-1618_hfci.pdf

The question before the Court in the case was: Does Title VII of the Civil Rights Act of 1964, the main statute governing discrimination in the workplace at the federal level, protect LGBTQ people from discrimination based on their protected characteristics of sexual orientation and/or gender identity?

Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964 has a tremendous backstory which you can read about in my previous blog post: https://stephensnaphtal.com/inspirational-history-us-employment-law/.

The relevant text of the Title VII of the Act reads as follows:

It is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. §2000e-2(a)(1)

So, the more detailed question before the Court was: if an employer terminates an employee because that employee is gay or transgender did that employer terminate that employee, “because of sex,” and thereby break the law?

Bostock v. Clayton County, Georgia

(and Altitude Express, Inc. v. Zarda, and Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission)

The case before the Court was actually three different cases combined into one. The question of whether employees can be discriminated against because of their sexual orientation came before lower courts in Zarda v. Altitude Express and Bostock v. Clayton County, Georgia. In Zarda v. Altitude Express, Altitude Express found out that Donald Zarda, a sky diving instructor, was gay after he had worked there for several seasons. Soon after that, Altitude Express terminated Mr. Zarda. Similarly, Clayton County, Georgia, terminated Gerald Bostock’s decade-long employment as a child welfare advocate, right after finding out he had joined a gay recreational softball league. The question of whether employees can be discriminated against because of their gender identity/transgender status came before a lower court in EEOC v. Harris Funeral Homes. In this case, Harris Funeral Homes terminated Aimee Stephens’s employment after she transitioned from male to female.

The Supreme Court reached a logical and straightforward ruling:

“The statute’s message for our cases is equally simple and momentous: an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Bostock v. Clayton County, Georgia, 590 U.S. __ at *9 (2020)

Yes, it is. Though the majority opinion made many arguments, the most straight forward one went as follows. Imagine two employees who are exactly the same except for their sex, say George and Georgina. The employer terminates George for being attracted to men but does not terminate Georgina for being attracted to men. The employer has illegally factored sex into its employment decision. Similarly, imagine an employer has two employees who are exactly the same, Georgina and Aimee. The employer terminates Aimee (born with male genitalia) but not Georgina (born with female genitalia).  Again, the employer has illegally considered sex in its employment decision.

This case positively impacts LGBTQ workplace rights and beyond.

This ruling will make a big positive difference in the lives of many American employees. Now, employees in every state may bring their LGBTQ based employment discrimination claims to federal court.

Some states, like New York and New Jersey, already had state laws that gave LGBTQ employees protections from workplace discrimination. Other states, about half, did not. That means that the LGBTQ people living and working in those states now have protections that they did not have before.

Additionally, this decision strengthens the freedom of all Americans to express their gender however they see fit. In a previous landmark case from 1989, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that individuals do not need to comply with sex stereotypes in order to succeed at work. If the Court had decided Bostock to allow discrimination based on LGBTQ status, lower courts would have struggled to draw a line between which gender expression is protected and which is not.

The Court left a window open to future discrimination.

Unfortunately, near the end of the majority opinion, the Court gestured at a possible window left open for discrimination: The Religious Freedom Restoration Act (RFRA).

In particular, Justice Gorsuch wrote for the majority that:

“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”

Bostock v. Clayton County, Georgia, 590 U.S. __ at *32 (2020).

The fact that Gorsuch hinted that the RFRA could supersede Title VII in some cases is a disturbing development at the end of an otherwise compassionate and well reasoned decision. 

The RFRA is a federal law passed in 1993. The RFRA states that the

“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except… if it 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 government interest.”

42 U.S.C.A. § 2000bb-1.

When first enacted, the RFRA applied not only to the federal government but also to state governments. However, the Supreme Court struck its application to States down as unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997).

So could the RFRA supersede Title VII? Congress made it clear in legislative history that it should not. Specifically, when passing RFRA both the House and Senate Judiciary Committees released statements saying that, “Nothing in [RFRA] shall be construed as affecting Title VII of the Civil Rights Act of 1964.” H.R. REP. 103-88 (1993); S. REP. 103-111, at 13 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903.

But would that persuade Judges, like Gorsuch, not to grant Title VII defendants RFRA defenses when their LGBTQ employees sue them for their civil rights? Not necessarily. Since these Congressional statements are not in the text of the RFRA, they do not carry as much weight, and Gorsuch’s fondness for textualism (reading the words of a law and determining their meaning as opposed to reading through Congress’s intent at the time of passing a law) helped deliver up the victory in Bostock.

The RFRA, and its interpretation, captures my particular interest because I researched its interactions with Title VII while working for the Equal Employment Opportunity Commission in 2014 when the Supreme Court released its decision Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

In Hobby Lobby, the Court took the drastic step of holding that a “religious,” closely held for-profit corporation could be considered a “person” under the RFRA. In Hobby Lobby, the Court said that the Department of Health and Human Services’ contraception mandate substantially burdened the Hobby Lobby craft store’s exercise of religion and thereby violated the RFRA. Before this decision, many people considered the RFRA not to apply to for-profit corporations at all.

Under Title VII, only corporations, and similar organizations, can be defendants. Individuals cannot be defendants. This means that for RFRA to interfere with Title VII, the defendant must be either (1) a religious non profit corporation, or (2) a religious closely held for profit corporation. With respect to category (1), Congress wrote carve outs into Title VII itself to accommodate religious non profit organizations like churches. With respect to category (2), a private company would need to be both closely held, and it would need to demonstrate that it was religious, a high burden.

Next, for RFRA to interfere with Title VII, there must be state action (i.e. the Government substantially burdening the exercise of religion). Because of this, many courts have held that RFRA is not applicable in lawsuits between private parties. See General Conference Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 409-10 (6th Cir. 2010) (RFRA did not apply in a dispute between two private parties over trademarks); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) (church could not assert RFRA defense against other church for enforcing their intellectual property rights under federal copyright laws). For the sake of Title VII, this means that if an employee sued his employer as an individual, the employer could not use RFRA as a defense for anti-LGBTQ discrimination. However, at least one appellate court, the Second Circuit, found that when an individual sues their employer for discrimination, the employer could have a RFRA defense. See Hankins v. Lyght, 441 F.3d 96, 103 (2d Cir. 2006).

Assuming a Title VII defendant can pass these hurdles (of establishing that their corporation is a religious “person” under the RFRA, there is state action, and that contrary to legislative intent, RFRA should interfere with Title VII), then the defendant would need to show that complying with Title VII substantially burdened their corporation’s exercise of religion. This would be no small feat. In Hobby Lobby, the Supreme Court calculated that if Hobby Lobby chose not to comply with the contraceptive mandate it would be taxed up to $475 million per year. It concluded that this was a substantial burden. By contrast, Title VII caps damages to $300,000 per claimant. This hardly seems comparable.

Gorsuch noted that Harris Funeral Homes did try to pursue a RFRA defense of its termination of Aimee Stephens at the Sixth Circuit. In the Sixth Circuit, Harris Funeral Homes argued that employing Aimee Stephens violated the owner of the Company’s religious exercise and thus should supersede Title VII of the Civil Rights Act. Though the Sixth Circuit did not do a deep analysis of whether Harris Funeral Homes was a religious corporation, the Sixth Circuit held that a company’s bare compliance with Title VII did not substantially burden it under the RFRA. The Supreme Court did not consider the RFRA applicability on the appeal.

If the Court did find that complying with Title VII was a substantial burden for a particular employer, then the plaintiff, most likely the Government, would have an opportunity to show that Title VII is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest.

What could be a more compelling Government interest than civil rights? Title VII of the Civil Rights Act of 1964 grew out of a mass movement to rid the nation of lingering specters of slavery such as segregation and Jim Crow laws, and for more than fifty years has helped our Nation’s workplaces become more fair, diverse, and productive. Generally Courts have decided not to adjudicate whether federal laws serve compelling governmental interests, assuming for the purposes of RFRA analysis that they do, and moving on to the question of whether the law in question furthers the compelling interest by the least restrictive means. See Hobby Lobby at *23.

Title VII surely uses the least restrictive means to accomplish its aims. For example, Title VII contains both protections against “discrimination on the basis of religion,” for employees and an exemption for “religious corporations.” See 42 U.S.C. § 2000e-1. In addition to Title VII’s carefully considered religious accommodations, religious institutions can be shielded from Title VII by the “ministerial exception” under the First Amendment. This allows churches to select those who carry out their religious missions.

For all the reasons listed above, it seems very unlikely to me that RFRA could supersede Title VII and come to the aid of employers who want to discriminate against LGBTQ employees. Gorsuch’s (and the rest of the majority’s) off handed comment at the end of the decision of that possibility, sullies a decision that is an otherwise shining example of common sense jurisprudence, and compassionate upholding of human rights.

Thanks for reading. If you have other questions or comments about LGBTQ workplace rights or the Supreme Court’s landmark decision, share them in the comments.

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If you have further questions about a specific incidence of discrimination, feel free to contact the Firm through the contact page: https://stephensnaphtal.com/contact/.