By Allison Carroll
The United State Supreme Court handed down its opinion in Bostock v. Clayton County June 15, holding that Title VII of the Civil Rights Act of 1964’s prohibition against discrimination on the basis of sex encompasses protection for homosexual and transgender individuals in the workplace. Writing for the majority, Justice Neil Gorsuch opined that the plain language of Title VII prohibits workplace discrimination against homosexual and transgender individuals because “[a]n 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.”
Since the opinion’s release, there has been a flood of commentary regarding the impact of the decision on religious freedom, particularly with respect to hiring at religious organizations. Private religious schools in particular have surely wondered what this decision will mean for each religious institution’s hiring practices: does Bostock represent a radical shift in the Supreme Court’s jurisprudence on religious freedom? Or, despite the indisputable significance of the decision, does the Court’s decision maintain the religious freedom status quo? Perhaps, however, one need look no further than the final paragraphs of the majority opinion to understand the reach of the Supreme Court’s decision.
In closing the majority opinion, Justice Gorsuch took care to note that the Court is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” because “that guarantee lies at the heart of our pluralistic society.” However, Justice Gorsuch reassures the reader that while concerns about the intersection between Title VII and religious freedom abound, the Bostock decision does not alter the current body of law governing hiring at religious organizations, including three exceptions to the prohibition on discrimination in the workplace:
- First, the plain language of Title VII itself includes an express statutory exception for religious organizations.
- Second, the Supreme Court’s interpretation of the First Amendment bars the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.”
- Third, the Religious Freedom Restoration Act (which Justice Gorsuch characterizes as a “super statute” since it can displace the application of other federal laws), passed in 1993, “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.”
While there are other defenses for religious organizations outside those mentioned in the majority opinion, the three emphasized by Justice Gorsuch provide key protections for religious organizations.
Exception under Title VII
Title VII provides its own carve-out for religious organizations, providing, “[t]his subchapter shall not apply … 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.”
Thus, religious organizations may make hiring and employment decisions based upon an applicant or employee’s religion. In other words, a religious organization may make employment contingent upon the applicant or employee’s agreement with the organization’s religious doctrine (or, as it is sometimes put, its “statement of faith”).
Title VII provides that this exception only applies to organizations whose “purpose and character are primarily religious.” The Equal Employment Opportunity Commission has identified non-exclusive factors that may be considered to indicate whether an entity is religious, including “whether the organization’s articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.”
Note that this exception applies to employees of a religious organization that do not fall within the ministerial exception, discussed below, which ensures greater control over hiring decisions for clergy-members at religious institutions.
Ministerial Exception
The “ministerial exception” is an established legal doctrine which bars the application of anti-discrimination laws to religious institutions’ employment decisions related to their “ministers.” While the ministerial exception itself is not explicitly stated in the United States Constitution, the exception is based upon stated principles in the First Amendment’s Free Exercise Clause and Establishment Clause, including a religious institution’s right to select its own minister and the prohibition on government involvement in “ecclesiastical” decisions.
In 2012, the Supreme Court further clarified the application of the ministerial exception when it unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the exception prohibits claims under the federal employment discrimination laws (including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act) against religious organizations by employees performing religious functions. In that case, the employee filed a lawsuit against her employer, Hosanna-Tabor Evangelical Lutheran Church and School, alleging that the school violated the Americans with Disabilities Act when it fired her after she became ill. The employee filed a complaint with the Equal Employment Opportunity Commission, which ruled in her favor and authorized a lawsuit against the school. Attorneys for the school argued that the ministerial exception applied to give the school, indisputably a religious institution, certain rights to control employment matters without interference from the government. The lower courts grappled with whether the employee’s role at the school was religious in nature so as to invoke the protection of the ministerial exception.
Chief Justice John Roberts, writing the unanimous decision, pronounced that the employee was a “minister” for purposes of the ministerial exception, and thus dismissed her lawsuit. Chief Justice Roberts detailed the history of the exception, which was established by courts to prevent government interference with the authority of churches and a violation of the First Amendment’s Establishment and Free Exercise clauses. He also rejected the employee’s argument that the First Amendment was irrelevant to the religious school’s (or any religious organization’s) right to choose its ministers.
The Court concluded that the employee acted as a minister in part because the school held her out as one and distinguished her role from that of the school’s lay teachers. The employee also held herself out as a minister by accepting a formal call to religious service as a prerequisite to her position (a formal call not necessarily required of the lay teachers), teaching religious classes, and leading religious ceremonies. While the employee did perform some secular duties in her position, her status as a commissioned minister outweighed the secular aspects of her job. Most importantly, Chief Justice Roberts’ opinion rejected the employee’s argument that the school’s stated decision to fire the employee was pretextual, noting that the ministerial exception applies regardless of the motivation for the employment decision.
Ultimately, the decision in Hosanna-Tabor was relatively straightforward given both the employee and the school’s acceptance of the employee’s status as a minister. In a concurring opinion, however, Justice Samuel Alito emphasized that the title “minister” should not define a court’s inquiry regarding the application of the ministerial exception. Instead, the focus should be on the employee’s function. Justice Alito stated that the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”
Justice Alito’s concurring opinion highlights the fact that, while it is obvious that the ministerial exception applies to members of the clergy, many religious organizations, particularly religious schools, still lack a clear answer regarding which of their employees fall under the exception. However, currently before the Supreme Court is a decision which should further clarify the definition of a “ministerial employee.” In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court will decide “[w]hether the Religion Clauses [in the First Amendment] prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, where the employee carried out important religious functions.” Key considerations in this case include the employee’s title and job description, as well as the extent of the religious training the employee has received. This case was argued before the Supreme Court on May 11, 2020, and an opinion is expected later this summer.
Religious Freedom Restoration Act of 1993
The third and final protection for religious freedom cited in Justice Gorsuch’s opinion, the Religious Freedom Restoration Act of 1993 (“RFRA”), 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 displaces the normal operation of federal laws as a kind of “super statute,” it may supplant Title VII’s prohibition on discrimination in the work place in some instances.
One question that may arise following the Bostock decision is the interplay between a religious organization’s ability to require alignment with a statement of faith as a condition for employment—particularly if that statement of faith touches on issues of marriage, sexuality, and gender identity—and the prohibition on discrimination on the basis of sex. In such dilemmas the RFRA, among other protections for religious freedom as outlined above, may operate to trump Title VII’s prohibition on sex discrimination if that prohibition would substantially burden a religious organization’s beliefs on those issues.
Conclusion
The Bostock decision is, without question, one of the more significant decisions to be handed down by the Supreme Court in 2020. As lower courts begin applying Bostock to various factual scenarios, new questions regarding the scope of the decision will inevitably arise, some of which may be answered by the Supreme Court’s forthcoming decision in Our Lady of Guadalupe School v. Morrissey-Berru, expected later this summer. However, Justice Gorsuch has, at the very least, apparently attempted to make clear that religious organizations still retain authority over hiring decisions as they relate to the exercise of the tenets of the organization’s faith.
Allison Carroll represents individual and corporate clients in a variety of commercial litigation proceedings. She advises and represents health care entities and medical professionals in administrative litigation and healthcare-related litigation. In addition, Allison assists civic and religious organizations in conducting independent investigations, including allegations of sexual abuse. She can be reached at acarroll@canteyhanger.com.