Supreme Court: “Sex” Discrimination Includes LGBT Discrimination, but Religious Groups Have Defenses

This article was reposted with permission from Conner & Winters.

In a 6-3 decision that unquestionably qualifies for “landmark” status, the U.S. Supreme Court ruled today that Title VII’s prohibition of sex discrimination in employment decisions also prohibits discrimination based on sexual orientation. The following summarizes portions of the majority and dissenting opinions addressing how religious employers may fare under the new ruling.

The majority opinion

Writing for the majority, Justice Gorsuch neatly summarized the Court's holding as follows:

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.

Some of the arguments that were made in opposition to the decision the Court reached focused on the rights of religious organizations. The majority opinion addressed those arguments as follows:

[E]mployers 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.

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.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA). That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. 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.

The opinion concluded by stating that "none of the employers before us today represent ... that compliance with Title VII will infringe their own religious liberties in any way," so how these doctrines protecting religious liberty interact with Title VII "are questions for future cases."

The dissent

A dissenting opinion by Justices Alito and Thomas categorized the potential impact of the Court’s decision in other contexts, including athletics, health care, housing, and (notable here) “employment by religious organizations”:

Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “[r]eligious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor. Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.” But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.

The dissenting opinion concluded: “Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

In pending and future employment litigation involving LGBT discrimination claims, the Court's decision in this case puts ministry employers in a defensive posture. As the Court has now interpreted the law, Title VII presumptively prohibits LGBT discrimination. Accordingly, religious groups with theological views that do not align with that interpretation will need to show that they are entitled to an exception under existing laws, such as the ministerial exception defense. The scope of that defense will be addressed by the Court in a separate ruling expected to be released later this month.

If you have any questions about this development, please contact Donn Meindertsma or Danny Miller at Conner & Winters.


This text is provided with the understanding that ECFA is not rendering legal, accounting, or other professional advice or service. Professional advice on specific issues should be sought from an accountant, lawyer, or other professional.

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