Equality in the Workplace
A look at two evolving issues—sex and religious discrimination—impacting employment law
By Richard Carlson
Employment law has zigzagged with the transition from the Obama era to the Trump era. The Trump administration has removed the Obama administration’s mark from a wide range of labor policies and is designing its own stamp. This article will focus on changes important to workplace equality issues. How are the rules for equal employment opportunity changing and what changes might we see in the near-term future?
Discrimination Because of Sexual Orientation or Identity
A leading issue in employment discrimination law is whether discrimination because of sexual orientation or identity is illegal “sex discrimination.” Title VII of the Civil Rights Act of 19641 prohibits sex discrimination but neither expressly confirms nor expressly rejects that discrimination includes sexual orientation or identity discrimination. Proponents for an expansive definition of “sex discrimination” rely on two major U.S. Supreme Court decisions.
First, in Price Waterhouse v. Hopkins,2 the court held that an employer is motivated by illegal sex bias if sexual stereo-types or gender norms affect its employment decisions. For example, if the employer refuses to hire a woman at least in part because she is “macho,” the employer is illegally discriminating on the basis of sex. It follows that if the employer refuses to hire a man because he is “effeminate,” the employer violates the law against sex discrimination.
Second, in Oncale v. Sundowner Offshore Services,3 the court held that an employer might be liable for sex discrimination in failing to prevent harassment of a male employee by other male employees if the harassment was “because of” the victim’s “sex.” In other words, if the male harassers targeted the victim because he too was male, and would not have targeted a woman, the harassment was “because of sex” within the meaning of Title VII.
Price Waterhouse and Oncale avoided some obvious questions: Does an employer discriminate because of sex if it discriminates on the basis of sexual orientation or identity? In other words, is discrimination against LGBT applicants and employees illegal sex discrimination? Some lower courts initially adopted the following distinction: An employer discriminates “because of sex” if it discriminates because it believes a male employee is effeminate or a female employee is masculine, but not if it discriminates because of the employee’s sexual orientation.4
The Obama-era Equal Employment Opportunity Commis-sion, or EEOC, adopted an expansive rule: Discrimination on the basis of sexual orientation or identity is illegal sex discrim-ination for purposes of employment.5 As of this writing, the Trump-era EEOC has neither confirmed nor disavowed the Obama-era view. However, parts of the Trump administration, especially the Department of Justice, or DOJ, have rejected the Obama-era view and have taken the position that neither sexual orientation nor sexual identity is a protected characteristic for purposes of sex discrimination law. For example, in Zarda v. Altitude Express, the DOJ filed an amicus brief arguing unsuccessfully that Title VII does not prohibit discrimination on the basis of sexual orientation or identity.6
The EEOC’s and DOJ’s interpretations of the law are not binding on the courts. But will the courts be persuaded to reverse their drift in favor of protection of LGBT rights? A complete reversal of trend seems unlikely, at least with respect to employment discrimination law. In the end, the language of Title VII, Price Waterhouse, and Oncale is what it is.
Regardless of what the federal government does, many states and some cities already prohibit employment discrimination on the basis of LGBT status. The fear of a federal reversal might spur more states to adopt their own laws for LGBT rights. A fragmented and inconsistent law presents its own problems for employers that cross state lines and value uniformity and standardization of employment policies. An employer will violate the law in at least some places if it does not prohibit discrimination on the basis of LGBT status. It will create complications for itself if it allows “exceptions” for discrimination in non-protective states. If a plaintiff sues an employer for LGBT discrimination in New York, the employer’s authorization of discrimination wherever it can get away with it will be the plaintiff’s “Exhibit A” to prove illegal bias was the “motivating factor.”7
Discrimination Because of or Excused by Religion
Title VII prohibits discrimination because of “religion,” including religious beliefs or practices, and it requires an employer to “accommodate” an employee’s religious practices if accommodation will not cause an undue burden.8 But Title VII authorizes discrimination on the basis of religion by certain “religious” employers.9 Moreover, the ecclesiastical and ministerial doctrines limit judicial interference in certain aspects of religious entity governance, including employment matters.10 The Religious Freedom Restoration Act, or RFRA,11 requires balancing the demands of public law and religious practice. All of these laws are pieces of a puzzle that have not yet revealed a clear picture.
Religious employers can be of many types, starting with places of worship. When Congress enacted Title VII in 1964, the question of employment discrimination by churches or places of worship did not require much thought because it was unlikely that many churches would employ more than 14 employees—the threshold for statutory coverage.12 Even a very large church, by the standards of that era, could manage with just a few employees and many non-employee volunteers.
Half a century later, we are in the age of the megachurch, so large that it requires far more than 14 employees. Jobs routinely required for commercial enterprises are now also routine in places of worship: webpage designer, activities director, building maintenance, financial officer, and so on. It should come as no surprise that some of these employees have employment disputes, and that more of them are suing as their employers rise above the threshold for coverage. The scope of the defenses for religious employers remains uncertain after all these years. It is sure to be tested in the near future.
Other forms of religious entities like schools, universities, charities, and social services present a different set of problems for employment law. First, it is far from clear how “religious” a school, charity, or social service must be in order to be “reli-gious” for purposes of a statutory exemption. Placing a cross or other religious symbol above the door is clearly not enough. Serving the greater good or a moral cause is not enough because even secular organizations can serve a moral cause. Must the organization be affiliated with and funded mainly by a religious organization? What if it is financed in part by fees or donations by “non-members” or receives public grants? These issues are so difficult that a three-judge panel recently split three different ways in determining whether a nonprofit organization with a religious mission statement qualified as a religious entity.13
Finally, the Supreme Court has now held that a for-profit commercial enterprise can have a “religious” belief for purposes of the RFRA, protecting such a religious business from the imposition of public duties including, possibly, duties under employment law.14 In Burwell v. Hobby Lobby, the court held that an employer might assert its religious beliefs as an RFRA defense against a federal mandate to provide insurance coverage including the cost of abortifacients for its employees. Whether the RFRA absolves a commercial, for-profit employer of an obligation under federal law will depend on difficult balancing and tailoring tests.
These are only a few of the religious issues for the application of
employment law to religious employees and religious employers. During
the next decade, religion is likely to be a major theme for employment
RICHARD CARLSON is a professor at South Texas College of Law Houston, where he teaches employment law courses, contracts, and family law. He received his bachelor of arts degree from Wake Forest University and his juris doctor degree from the University of Georgia. Carlson was a clerk for Judge Lewis Morgan of the U.S. Court of Appeals for the 5th Circuit.