Diversity & Inclusion

LGBTQ Rights Lose to Employer’s Religious Beliefs

On June 20, the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers) delivered a blow to advocates of LGBTQ rights in the workplace when it sided with a self-described Christian business whose policies discriminated against gays. The lesson: Not all discrimination is unlawful discrimination.

Discriminatory Policies

Braidwood Management manages various health-related businesses. Its owner describes it as a “Christian business” with policies reflecting this orientation. To wit:

  • Employees cannot be gay or transgender.
  • Same sex marriage is forbidden.
  • The dress code is sex specific. Employees assigned male at birth must wear business attire including a tie. Employees assigned female at birth must wear skirts, blouses, and shoes with heels. No cross-dressing is allowed.
  • Employees must use the restrooms conforming with their gender assigned at birth, despite any asserted gender identity issue.

The company says the policies are based on its understanding of Christian scripture.

Not Waiting to Be Sued

Concluding it would be sued over its policies, Braidwood made a preemptive move and filed what is called a declaratory judgment action—that is, asking a federal court in Texas to decide now, not later, whether its policies violated Title VII of the Civil Rights Act of 1964. It included the Equal Employment Opportunity Commission as a party to the action.

The court ruled Braidwood was exempt from adhering to Title VII because of the Religious Freedom Restoration Act (RFRA) of 1993. In short, it was given a license to discriminate against LGBTQ employees and applicants. And the court issued a class action order protecting all companies claiming a religious exemption. The case then went to the court of appeals.

Big Win, Minor Loss

Braidwood won the big-ticket item empowering it to promulgate its rules. The 5th Circuit walked the litigants through the reasoning. Yes, the Supreme Court ruled in Bostock that sexual orientation is protected by Title VII as a form of sex discrimination. But a back window was left open: the free exercise of religion “lies at the heart of our pluralistic society.” And the RFRA was designed to provide broad protection to religious expression.

According to the appeals court, the RFRA states that the federal government “shall not substantially burden a person’s exercise of religion” unless the burden furthers a “compelling governmental interest” and is “the least restrictive means of furthering” that interest. Also, the RFRA requires the government to accept at face value any sincerely held objections.

When the facts of this case are filtered through this prism, the only compelling rationale asserted was the general governmental interest in eliminating sex discrimination. The appeals court reasoned that the law requires more than such a general aspiration to be considered “compelling.” If that was sufficient, then all religious objections would be swept aside. And the loss? The appeals court held that class action status, for a variety of procedural reasons, was inapplicable to the action. Braidwood Management Inc. et al v. Equal Employment Opportunity Commission et al (5th Cir., June 20, 2023).

Bottom Line

Note that the case doesn’t deal with the issue of whether a business, for religious reasons, is legally permitted to decline service because of sexual orientation or gender status. That decision is forthcoming from the Supreme Court.

From an employer standpoint, keep in mind that while “sincerity” isn’t a difficult burden to satisfy, there must still be some evidence of it. So, an employer must show its beliefs manifested into actual policies and procedures. One cannot just pull the religious card out of thin air if accused of unlawful sex discrimination. This area is evolving fast. I’ll keep you posted.

Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.

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