➤ EXEMPTIONS, from p.7
preme Court’s specifi c holding to
address questions that the Court
did not address, such as restroom
policies, dress codes, employee
conduct policies, and restrictions
on gender transition.
Title VII has a religious accommodation
provision that states
that the statute 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.”
Most courts have interpreted
this to mean that religious entities
are free to discriminate on the
basis of religion in deciding whom
to employ. However, most courts
have taken the view that this does
not exempt religious organizations
from complying with the ban
on discrimination because of race
or color, sex or national origin. In
recent years, the Supreme Court
has recognized a “ministerial exception”
under which religious
organizations enjoy absolute freedom
to decide whom to employ as
“ministers,” and earlier this year
the court adopted a broad interpretation
of “minister” in ruling
that teachers at two Catholic high
schools could not bring discrimination
claims against their employers
because the teachers’ jobs
were involved in advancing the
religious mission of the schools.
So far, however, the ministerial
exemption has not been extended
to employees whose jobs have no
religious function, such as custodial
or secretarial staff.
In his opinion, O’Connor adopted
a much broader interpretation
of the accommodation provision,
construing it to allow religious institutions
to discriminate based
on conduct which it considered to
be inconsistent with the tenets of
its religion. Thus, it accepted Bear
Creek’s argument that when it is
discharging a gay employee for
being sexually active or marrying
a same-sex partner, or a transgender
employee for engaging in
gender transition procedures, it
is not discriminating based on
their gender identity but rather on
their conduct, and thus the employer
is protected from charges
of discrimination under Title VII.
Having reached this conclusion,
O’Connor ruled that although Title
VII bans discrimination because of
sexual orientation or gender identity,
the accommodation provision
allows church-type employers to
fi re people because of conduct that
violates the employer’s religious tenets,
so there is no need to certify a
class of religious-entity employers
to take on those issues.
On the other hand, the religious
accommodation provision cannot
be plausibly interpreted to shelter
the discriminatory actions of
religiously-owned for-profi t businesses,
and this is where O’Connor
struck out in a radical direction,
fi nding that under RFRA and the
First Amendment, Congress cannot
restrict religious business owners
from refusing to employ people
who engage in such conduct.
Here he drew upon the Supreme
Court’s ruling from several years
ago in the Hobby Lobby case, holding
that for-profi t businesses (at
least those, such as Hobby Lobby,
that are owned by a small group
of individuals rather than being
publicly traded with hundreds or
thousands of shareholders) are
protected under RFRA, which restricts
the federal government from
enforcing laws that would burden
the free exercise of religion of any
person. The Court was relying on a
federal statutory defi nition of “person”
that includes “corporations.”
(Dissenters, led by the late Justice
Ruth Bader Ginsburg, rejected the
notion that a for-profi t corporation
has the same right to “practice religion”
as a person.)
Furthermore, taking the lead
from the Supreme Court’s decision
last June in Fulton v. City of Philadelphia,
the judge found that Title
VII itself is not a law of “general
application” because it does not
apply to all employers. Companies
with fewer than 15 employees are
not covered. Title VII provides no
protection against discrimination
for employees who are members
of the Communist Party, and allows
employers located on or near
Native American reservations to
discriminate on the basis of race
or national origin in favor of Native
Americans. He insisted that
these “secular” exceptions to the
application of Title VII remove
that statute from the category of a
law of “general application.” Thus,
consistent with the Fulton decision,
an application of Title VII
to religiously-owned businesses
would be presumptively unlawful
under the First Amendment’s free
exercise clause unless the court
were to fi nd that the federal government
has a compelling interest
to prevent discrimination against
people who engage in homosexual
sex, same-sex marriage, or gender
transition, which could only
be achieved by requiring religious
business-owners to allow such
conduct by their employees. In
Fulton, the Court concluded that
Philadelphia’s interest in protecting
prospective foster parents who
are same-sex couples from discrimination
was not suffi cient to
overcome Catholic Social Services’
religious objections to certifying
such people as foster parents.
Similarly, O’Connor concluded,
religiously-owned business enjoy
a constitutional right to discriminate
against such people, despite
what Title VII might say.
Looking to another part of the
First Amendment that protects
freedom of “expressive” association,
O’Connor drew an analogy
from the Supreme Court’s decision
in Boy Scouts of America v. Dale, in
which a 5-4 majority of the Court
held that the Scouts could dismiss
a gay man as an assistant scoutmaster,
having labelled him a “gay
activist,” because that organization
did not want to be associated with
his views about homosexuality. To
get to this conclusion, O’Connor decided
that when a religious person
seeks to conduct their business in
line with their religious values,
they are creating an expressive association
that, like the Boy Scouts,
could exclude people with whom
they does not wish to associate because
of their conduct.
Engaging in a detailed analysis
of the Supreme Court’s reasoning
in Bostock v. Clayton County,
O’Connor deemed it appropriate
to certify a class of all employers
who opposed homosexual conduct,
same-sex marriage, and gender
transition, even though not necessarily
for religious reasons. But he
managed to reason through to the
conclusion that that “policies that
enforce a sexual ethic that applies
evenly to heterosexual and homosexual
sexual activity do not discriminate
‘because of sex,’” so such
policies do not violate Title VII. He
similarly found that employers
do not violate Title VII when they
enforce dress codes that require
employees to dress consistent
with society’s gender-based dress
conventions for persons based on
their biological sex, but on the
other hand that an employer policy
against gender transition would
“only function to discriminate
against individuals with gender
dysphoria,” so such policies would
violate Title VII.
As to sex-specifi c restrooms,
however, another issue that the
Supreme Court disclaimed from
deciding in the Bostock decision,
O’Connor concluded that “sexspecifi
c bathrooms do not treat
one sex worse than the other,” so
“employers may have policies that
promote privacy, such as requiring
the use of separate bathrooms on
the basis of biological sex.” Consequently,
he granted the plaintiffs’
motion for summary judgment on
this issue.
O’Connor’s October 31 opinion
does not go into detail about what
orders he might issue to effectuate
his ruling on the parties’ summary
judgment motions, but presumably
he will order the EEOC not to
enforce Title VII against employers
within the classes he described
regarding actions which he has
ruled do not violate Title VII or are
protected by RFRA or the First
Amendment. And presumably the
Biden Administration will seek to
stay any such orders pending an
appeal. In the past, O’Connor had
issued nationwide injunctions
against various Obama Administration
policies, including those
protecting transgender people in
education and health care, so –
unlike some conservative judges
– he is not reluctant to issue injunctions
with nationwide effect,
although sometimes he has limited
such protection against enforcement
to the specifi c plaintiffs in the
case. In this case, however, where
he has certifi ed plaintiff classes,
that could take in a large number
of employers.
Judge O’Connor was appointed
by President George W. Bush. An
appeal of his decision would go
the US Court of Appeals for the
Fifth Circuit, 12 of whose 17 judges
were appointed by Republican
Presidents, including six by Donald
Trump and four by George W.
Bush.
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