Religious employers are testing the application of anti-discrimination laws that protect LGBTQ+ workers in light of a recent Supreme Court decision that backed the religious freedom rights of business owners. Their federal court cases are attempting to shed light on some gray areas where an exception to the anti-discrimination laws may or may not apply.
In 303 Creative, the U.S. Supreme Court ruled on June 30 in favor of a Colorado website designer who refuses to make wedding websites for same-sex couples due to her Christian beliefs about marriage. The court found the website designer’s free speech rights trumped the state’s legal protections against discrimination.
Attorneys for religious institutions are relying on the 303 Creative ruling to bolster their arguments for using the ministerial exception, which holds that federal anti-discrimination laws don’t apply to certain ministerial positions, including clergy and teachers with religious duties. However, the nondiscrimination laws do protect employees at religious institutions who have nonreligious duties, such as janitors, financial administrators and food service workers. Where to draw the line may not be so clear for some other positions at religious schools or hospitals.
“Those who should be covered by the ministerial exception are those who serve an important religious function. This can be someone who, for instance, leads a religious organization, conducts worship services, or serves as a messenger or teacher of faith,” said Mario Bordogna, an attorney with Clark Hill in Morgantown, W.Va. “The term is probably less important than application of the duties and responsibilities in the role.”
The courts “routinely consider a variety of factors, including the formal title given to the employee by the church, the substance reflected in that title, and the employee’s own use of that title. The most important factor in the evaluation of the ministerial exception is the religious functions performed by the employee for the religious organization,” said DanaLynn Colao, an attorney with Saiber in Florham Park, N.J.
The Supreme Court “has clearly concluded more recently that religious institutions are also legally permitted to adhere to their own beliefs, and that the protected exercise of those rights may include making certain adverse employment actions involving LGBTQ+ employees which would otherwise be unlawful,” Bordogna said.
Under Title VII of the federal Civil Rights Act, it’s illegal for employers to make adverse employment decisions based on sexual orientation or gender identity, which fall within the protected class of sex, according to the Supreme Court’s 2020 decision in Bostock.
“Guidance the EEOC attempted to issue on this subject after these opinions was rejected as unlawful in federal court in Texas late last year, but the lack of having any presently in-effect guidance does not change the status of the law as reflected in the decisions from the Supreme Court,” Bordogna said.
Drama Teacher Terminated
In 2017, a teacher sued Charlotte Catholic High School in North Carolina for sex discrimination after he was fired because he announced on Facebook that he was engaged to marry a man.
The school’s faculty handbook instructs employees to uphold the teachings and principles of the Catholic Church by serving as role models to students and not publicly engaging in conduct that contradicts Catholic teachings. Catholic doctrine opposes same-sex marriage.
The teacher mostly taught drama and English classes. Secular teachers at the school do not have to undergo religious training, do not have to be Catholic and do not have to be Christian, according to court documents.
The school’s lawyers argued in a brief that “religious organizations are exempt when they make employment decisions based on an individual’s religious belief, observance, or practice,” and that the federal Religious Freedom Restoration Act (RFRA) protects the Roman Catholic Diocese of Charlotte from the application of all federal laws that “substantially burden its religious exercise without satisfying strict scrutiny.”
In September 2021, the U.S. District Court for the Western District of North Carolina ruled in favor of the teacher, and the school appealed. The 4th U.S. Circuit Court of Appeals delayed the case earlier this year in order to consider the impact the 303 Creative ruling. Oral arguments are scheduled for September.
The majority opinion in 303 Creative “was emphatic that it had no bearing on employment discrimination cases,” said Luke Largess, an attorney with Tin Fulton Walker & Owen in Charlotte, N.C., who represents the teacher. “The 4th Circuit has not asked for any additional briefing about the effect of 303 Creative.”
However, Luke Goodrich, an attorney with the Beckett Fund for Religious Liberty, who represents the school, disagreed: “If a for-profit business gets constitutional protection when deciding what services to sell to the general public, then of course a religious school gets constitutional protection when deciding who is religiously qualified to teach the faith to the next generation.”
Guidance Counselor Fired
In 2019, a guidance counselor sued a Catholic school in Indianapolis for sex discrimination after she was fired because of her same-sex marriage. Three months before she was fired, she signed a contract that stated guidance counselors were expected to communicate the Catholic faith to students; pray with students; celebrate Catholic traditions; and help students strengthen their social, emotional, intellectual and Christian development, according to court documents.
The guidance counselor argued that she didn’t have religious duties in her job and that she advised students to talk to a priest, religion teacher or principal if they had in-depth religious questions. She said she was exempt from religious activities at certain staff gatherings.
However, the school argued that she should be included in the ministerial exception, and the 7th U.S. Circuit Court of Appeals agreed on July 13. The court concluded the guidance counselor qualified for the ministerial exception for two main reasons: She helped develop the criteria used to evaluate guidance counselors, which included religious components like assisting students in faith formation and attending church services, and she sat on the school’s Administrative Council, which participated in some religious planning and discussion.
“A fact-specific inquiry remains necessary in cases where the ministerial exception is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution,” the court stated.
LGBTQ+ Workers
About 30 percent LGBTQ+ employees reported being fired or not hired because of their sexual orientation or gender identity at some point in their lives, according to 2021 research from the UCLA School of Law in Los Angeles. Likewise, 9 percent of LGBTQ+ workers reported they were fired or not hired because of their sexual orientation or gender identity in the past year. Meanwhile, 57 percent of LGBTQ+ workers who experienced discrimination or harassment at work said their employer or co-workers did or said something to indicate the unfair treatment was motivated by religious beliefs.