Religious liberty and Title VII on course for collision

By characterizing a federal law that protects religious freedom as a "super statute," U.S. Supreme Court justice Neil Gorsuch is effectively encouraging religious groups to challenge the high court's recent opinion that the Civil Rights Act protects gay, lesbian, and transgender employees in the workplace, an employment attorney says.

"The court indicated that, as they see it, there are definitely ways in which religious freedoms would supersede Title VII protections," said Jen Orthwein, a founding partner at Medina Orthwein LLP, which specializes in employment and civil rights cases. The "super statute" designation Gorsuch gave to the Religious Freedom Restoration Act of 1993 in the Supreme Court's landmark opinion Monday, combined with the court's historical stance on how the act applies, more or less signals to religious employers they could succeed in challenging Title VII complaints by citing the act, Orthwein added.

The opinion said the court "was deeply concerned about preserving free exercise of religion, and how this is really a cornerstone of our society," noted Sheeva Ghassemi-Vanni, who represents employers as a partner at Fenwick & West LLP.

At the end of Monday's 6-3 opinion, Gorsuch identified three frameworks religious employers could use to challenge Title VII complaints. These include an exemption for religious organizations in Title VII itself; the First Amendment, which can suspend employment discrimination laws for religious institutions employing ministers; and the Religious Freedom Restoration Act, which, Gorsuch wrote, "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," Gorsuch continued. Bostock v. Clayton County, Georgia, 2020 DJDAR 5681.

Ghassemi-Vanni said she doesn't expect "throngs of companies... trying to seek exemptions" through the act. Companies will likely find it challenging to meet the burden of proving sincere religious belief, she said, and many will "not want the publicity and potential backlash of taking a position that is anti LGBTQ." Under the act, publicly traded companies - which are often larger and have less centralized leadership than privately held companies - will also have a harder time meeting the burden of proof, Ghassemi-Vanni explained, noting the U.S. Supreme Court made the same argument in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

In the case, the court recognized a closely-held corporation's sincerely held religious beliefs, so "they wouldn't have to provide female workers with birth control," Ghassemi-Vanni said. "The court nodded at the fact that this would be a harder argument for a publicly traded company to make."

Meanwhile, only a limited range of employers can seek exemptions through the First Amendment or the Title VII exemption. But tensions between advocates of religious freedoms on the one hand, and those wanting to enshrine protections for LGBTQ employees on the other, are long-standing, Orthwein said. "There's a lot of resources that are being put forward to bring cases that expand religious freedoms," said Orthwein. The attorney pointed to Project Blitz, a coalition of Christian groups that aims to push legislation to expand religious freedoms, as well as local statutes that "go even beyond the federal government's limitations."

Ghassemi-Vanni said she is interested to see how events will unfold in the near future. "The big question mark in my mind is how the intersection between Title VII, particularly now as interpreted by the court... is going to intersect with the religious rights of an employer," she said.