Free Speech, Sex Discrimination, and Religious Employers, Part I

Religious organizations and employers must comply with anti–discrimination laws while also honoring their sincerely held beliefs. The Fifth Circuit Court of Appeals recently ruled in favor of a Christian organization, Braidwood Management, shielding it from being sued by the EEOC which argued it was engaged in unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. Braidwood Management was granted protection under the Religious Freedom Restoration Act (RFRA), which is a 1993 federal law limiting government agencies’ ability to burden anyone’s religious freedom.

To fully understand protections that may be extended to religious organizations, let’s first go back over some recent history.

Bostock v. Clayton County

This Supreme Court case in 2020 decided that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation or gender identity.

Title VII makes it 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.”¹ The plaintiffs in the Bostock case were terminated for various reasons; one for “unbecoming” conduct shortly after he began participating in a gay recreational softball league, another after coming out as gay, and the last one after deciding to change genders. They all argued they were terminated because of their sex, so it should fall under Title VII. Even though when the Civil Rights Act was created, “sex” was referring to biological sex, the plaintiffs claimed that they would not have been terminated if not for their biological sex.

The Bostock decision redefined the meaning of “sex” in Title VII so the prohibition against discrimination “because of sex” includes a prohibition against discrimination against employees on the basis of their sexual orientation or gender identity.

The Supreme Court explained that there were certain defenses and immunities for religious employers who operate on traditional convictions about sexuality, marriage, and gender. The Bostock court offered three possible protections for religious employers:

1. Title VII’s “religious organization” exception, which states that the law does 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.”²
2. The Ministerial Exception is a doctrine under the First Amendment that protects religious employers from many employment laws when applied to employees who perform important religious functions.
3. The Religious Freedom Restoration Act (RFRA) is a federal statute requiring that all federal laws creating a burden on religion must be subjected to the highest level of judicial scrutiny.

Bear Creek Bible Church & Braidwood Management, Inc. v. EEOC, et al

The Bear Creek Bible Church & Braidwood Management case from 2021, which you can read more about in our previous post here, began when two Texas employers, a nondenominational church (BCBC) and Braidwood, a Management company, filed suit against the EEOC seeking a declaration that they were not in violation of Title VII, considering they were operating on their religious convictions.

They sought exemption from Title VII’s requirements on the basis of RFRA; however, RFRA is only triggered when a federal statute or regulation imposes a burden on the religious exercise of the party claiming the RFRA defense. The district court determined that BCBC was exempted under the religious organization exception because it was a church. Because it was already exempted, Title VII was not burdening its religious exercise. Braidwood, on the other hand, was not found to be a “religious organization” under Title VII and because of this, RFRA was invoked. One of the factors in determining if an organization is a religious organization is whether it is for–profit.

The court certified two classes of employers: for–profit religious businesses and those that oppose “homosexual or transgender behavior” for nonreligious reasons.

The court found that Title VII imposed a substantial burden on Braidwood’s religious exercise because employers like Braidwood “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.” The district court ruled that Braidwood was protected under RFRA.

Both BCBC and Braidwood were protected under the First Amendment’s Free Exercise Clause as well since the court concluded that the employers’ decisions not to hire or retain employment of individuals who engage in conduct opposed to their religious views were considered expressive association.

Lastly, the court addressed the scope of Title VII and the standard the Bostock court established for sex discrimination. The court ruled the standard for sex discrimination was “favoritism, plus blindness,” and addressed five different workplace policies: policies against bisexual conduct, policies prohibiting certain sexual activities, sex–specific dress codes, policies prohibiting hormone treatments and genital surgery, and sex–specific workplace bathrooms.

The EEOC challenged the decision, and the case was taken to the U.S. Court of Appeals for the Fifth Circuit.

Braidwood Management v. EEOC³

The Fifth Circuit partially affirmed and partially reversed the lower court’s decision, and it has been remanded to the district court.

The EEOC argued that the claim wasn’t ripe for judicial review; ripeness means that the facts of the case have matured into an existing substantial controversy. However, the Fifth Circuit held that “the plaintiffs ha[d] established a credible fear of such an action sufficient to establish standing” and “no further facts [were] required to adjudicate plaintiffs’ specific claims.”

The EEOC asked for decertification of the two classes of employers certified in Bear Creek Bible Church on the grounds that both classes are “broad” and lack any specific factual development. The Fifth Circuit reversed the certification decision, concluding that the class definitions “are too broad and ill–defined to reach the thresholds of class certification.”

The court did not vacate the lower court’s ruling that BCBC is a religious organization not burdened by Title VII. It also addressed Title VII policies regarding bisexual conduct, gender reassignment surgery, and hormone treatment. Braidwood sought a declaratory judgment that Title VII permits employers to discriminate in certain situations. The court reiterated what the district court had concluded: that discrimination against bisexuals or prohibiting employees from taking hormone therapy or undergoing sex–reassignment surgery” is not permitted; it held that enforcing a sexual ethic that applies evenly to heterosexual and homosexual sexual activity and enforcing sex–specific dress code policies or sex–segregated bathroom policies is permitted. Ultimately, the court said “[a]lthough plaintiffs have a valid cause of action, we decline to answer these open questions for Braidwood’s policies because the class certifications have been reversed,” and it vacated the judgments for “all of the scope–of–Title–VII claims post–Bostock.” The court notes that Braidwood did not represent a class requiring relief, which is one reason given for leaving these questions unanswered.

The Braidwood court affirmed that the Religious Freedom Restoration Act “requires that Braidwood, on an individual level, be exempted from Title VII because compliance with Title VII post–Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct.”

This RFRA exemption from the sex discrimination provisions of Title VII applies even to for–profit companies. This will allow many religious employers to claim protection from the LGBTQ discrimination rules that beforehand would not have qualified.

Understanding the protections that may be available to religious organizations

While a Fifth Circuit ruling does not apply to all jurisdictions in the country, it is still good to understand, as it offers hope for faith–based organizations in every jurisdiction to be awarded the same protections. Based on the recent Braidwood decision, churches and other faith–based organizations may be able to avoid liability and uphold their sincerely held religious beliefs.

RFRA

Under the Religious Freedom Restoration Act, once a party shows that a federal law substantially burdens their religion, the federal government must then show that the burden is justified by a compelling interest and that it has chosen the least restrictive means of advancing that interest. RFRA applies only to federal laws, but will apply to remedy all burdens on religion, even if those burdens result from neutral, generally applicable laws.

First Exercise Clause of First Amendment

The First Amendment applies to both state and federal laws but does not protect against burdens resulting from generally applicable laws that are neutral toward religion. If a law is being challenged under the Free Exercise Clause but is determined not to be a neutral, generally applicable law, the court will then conduct the analysis it would under RFRA: the government must show a compelling interest and that the law at issue is the least restrictive means of achieving that interest. (But usually courts will hold that a law is neutral and generally applicable.)

The First Amendment has also been interpreted to protect the right of expressive association, specifically the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” The government can only place a burden on someone’s expressive association if the law is narrowly tailored, which means it must use the least restrictive means to achieve its purpose.

Conclusion

This new Fifth Circuit ruling partially affirmed the BCBC & Braidwood case, maintaining important protections for religious employers.

Faith–based organizations might want to seek counsel to find out which protections apply to them and ensure that they are operating their business in a way that limits the likelihood of any violations or litigation.

Stay tuned for the second part of this blog post, which will detail the Supreme Court’s 303 Creative case on free speech protection for expressive businesses against SOGI accommodation laws. Unlike the Braidwood case, the Supreme Court’s 303 Creative decision applies to all jurisdictions.

_________________________________________

¹ 42 U.S.C. § 2000e–2(a)(1)

² 42 U.S.C. § 2000e–1(a)

³ Braidwood Management v. EEOC, No. 22–10145 (5th Cir. 2023)

Featured Image by Rebecca Sidebotham.