Civil SocietyJudicialFederal Court Says Churches Can Follow Religious Beliefs About Sexual Conduct in Employment Practices

The Equal Employment Opportunity Commission (EEOC) must grant exemptions from Title VII employment discrimination regulations under the Religious Freedom Restoration Act and First Amendment, especially regarding hiring and employment practices involving homosexual, bisexual, and transgender employees.

Plaintiffs Bear Creek Bible Church, a non-denominational church in Keller, and Braidwood Management Group, which operates several health-related for-profit businesses in Katy, sued the EEOC over its enforcement of Title VII against organizations like theirs. The plaintiffs also sought certification as a class action.

The case was originally filed in 2018 against the EEOC guidance that defined sex discrimination to include sexual orientation or sexual identity. It was stayed awaiting the U.S. Supreme Court decision in Bostock in July 2020.

“This is a monumental victory for religious liberty rights for religious employers across the country, not just churches. Employers with strongly held beliefs are not forced to sacrifice those beliefs to conduct business,” America First Legal (AFL) general counsel, Gene Hamilton, who represents the plaintiffs, told The Texan.

As the court pointed out in its decision, while the EEOC wanted to erase any distinctions between the biological sexes, “Bostock reinforces the distinction between biological sexes and held that treating one sex worse than the other constitutes sex discrimination. The Supreme Court has long recognized the need for privacy in close quarters, bathrooms, and locker rooms to protect individuals with anatomical differences — differences based on biological sex.”

“This is the first decision to emphasize that the distinctions are not erased,” Hamilton emphasized. “The fight continues for the basic truth that differences in biological sex exist.”

In his decision, O’Connor determined that Bear Creek Bible Church was exempt from Title VII as a religious employer, even regarding its non-ministerial employees, stating, “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.”

O’Connor did not certify Bear Creek Bible Church as a class representative for all churches, but he did certify Braidwood as a class representative for religious business-type employers. 

While Braidwood is subject to Title VII employment discrimination law, as a business operating with sincerely held religious beliefs, it may seek protection under the Religious Freedom Restoration Act (RFRA) because its religious beliefs were substantially burdened by the employment law. 

RFRA was passed in 1993 and signed by President Bill Clinton as a measure to “establish rights beyond those protections afforded by the Constitution’s free exercise clause by creating a heightened standard of review for government actions that substantially burden a person’s exercise of religion.”

In its analysis of Braidwood’s RFRA claim for protection, the court used the two-pronged strict scrutiny test. First, the EEOC must show a compelling interest, and second, that it used the least restrictive means possible. 

The order states that the EEOC met neither prong of the strict scrutiny test. While the government argued that its compelling interest was to stop workplace discrimination, the court found that too broad a statement of its interest. 

Instead, O’Connor said the inquiry was, more specifically, what compelling interest the EEOC had in denying a religious exemption to Braidwood. Because it did not provide such a specific interest, it failed that prong. 

Additionally, O’Connor determined that the EEOC had not used the least restrictive means possible. “Forcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest, especially when Defendants are willing to make exceptions to Title VII for secular purposes.”

O’Connor’s reasoning was similar when examining Braidwood’s First Amendment free exercise claim. He recognized that the U.S. Supreme Court’s decision in Employment Division vs. Smith requires that a law be generally applicable, however, he adopted the reasoning of the recently-decided case of Fulton v. City of Philadelphia wherein the Supreme Court noted that a law granting nonreligious exemptions is not generally applicable and thus triggers the strict scrutiny test.

Title VII has multiple exemptions including those for businesses with fewer than 15 employees and an exemption allowing for discrimination against members of the Communist Party. If Title VII allows for those exemptions, it must consider religious exemptions and use the least restrictive means in doing so. 

Quoting the Hobby Lobby case from 2014, O’Connor said, “Courts must ‘scrutinize the asserted harm of granting specific exemptions to particular religious claimants’ and ‘look to the marginal interest in enforcing’ the challenged government action in that particular context.”

Also in question were several policies by Braidwood about same-sex bathrooms and dress codes. 

“The court affirmed that any employer for religious or non-religious reasons can maintain same-sex bathrooms and dress codes,” Hamilton emphasized. “This is a resounding victory for employers across the country.” 

The federal government has 60 days to appeal after the judge issues his final order. 

“Until the federal government convinces a higher court that the judgment is wrong, we have a case with nationwide implications because it is a class action,” Hamilton said.