Navigating religious expression and expanded workplace protections

Wilson Jarrell and Natalie Pattison
BridgeTower Media Newswires

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) released new draft guidance on religious discrimination in the workplace. This update is long overdue – the first from the EEOC in 12 years, during which we have seen a multitude of legal developments and emerging issues. Unfortunately, while the 114-page guidance document addresses many situations, its lack of answers to some questions creates legal uncertainty. However, it is important to note that Oregon law clearly prohibits discrimination based on sexual orientation and gender identity, with only extremely limited exceptions for religious institutions.

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Background

Title VII of the Civil Rights Act of 1964 (Title VII) generally prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Last summer, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity. The landmark decision consolidated three separate cases in which an employee was terminated after revealing he or she was gay or transgender. The court’s decision was viewed as a major victory for LGBTQ+ rights, although the court left several unanswered questions about the intersection of religious expression and Title VII in the workplace.

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Title VII and religious expression

The Supreme Court held that Title VII’s prohibition against sex discrimination should now be read to also prohibit discrimination on the basis of sexual orientation and gender identity. The court reasoned that it is impossible to discriminate against a person for being gay or transgender without discriminating against them based on sex.

Notably, however, the court did not address whether an employer’s sincerely held religious belief could shield it from having to comply. The court did not rule whether the Religious Freedom Restoration Act of 1993 (RFRA) could “supersede Title VII’s commands in appropriate cases.” This left open whether, in certain extremely limited circumstances, a private employer might be able to discriminate against employees based on LGBTQ+ status.

The court also did not address Title VII’s “religious organization exemption.” Title VII does not allow employers to discriminate based on race, color, sex or national origin, but it does allow religious organizations to give employment preference to individuals of the same religion.

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EEOC proposed guidance

The EEOC’s recently issued proposed guidance discusses the rights religious employers have when it comes to antidiscrimination laws, but unfortunately left some of these questions open. The EEOC reiterates that Title VII does not allow for discrimination, but also noted that the prerogative of the religious organization exemption allows religious organizations to employ individuals “of a particular religion” and “has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.”

The EEOC’s proposed guidance also discusses when a reasonable accommodation for a religious belief imposes an undue burden on an employer. Title VII requires an employer to provide reasonable accommodations for an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless doing so would create an undue hardship. Determining whether a religious accommodation imposes an undue burden on an employer requires a case-by-case inquiry.

However, the guidance merely states that there are “some instances” when Title VII cases might involve a defense based on First Amendment rights or the RFRA, and that these rights might be violated by compliance with Title VII. More specifically, the EEOC noted that “defining the exact parameters of the First Amendment or RFRA is beyond the scope of this document,” and stressed the importance of a “nuanced balancing of potential burdens.” Thus, it remains to be seen whether, under federal law, a religious belief about sexuality would allow an employer to discriminate in employment of an individual based on the person’s sexual orientation or sexual identity under the religious organization exemption.

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Wilson Jarrell is an attorney with Barran Liebman LLP. He advises and represents employers in a wide range of employment matters. Contact him at 503-276-2181 or wjarrell@barran.com.
Natalie Pattison is an attorney with Barran Liebman LLP. She specializes in drafting memoranda, conducting legal research, and developing policy procedures, trainings and handbooks. Contact her at 503-276-2104 or npattison@barran.com.