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U.S. Supreme Court's Decision Leaves Door Open at Intersection of Religion and LGBT Discrimination

    Client Alerts
  • June 19, 2020

The U.S. Supreme Court’s landmark Bostock decision earlier this week confirmed that Title VII’s prohibitions against discrimination in employment based on sex apply to claims alleging bias due to sexual orientation or gender discrimination. The 6-3 decision included an unusual majority coalition of the court’s conservative and liberal justices. One result of this coalition is a portion of the decision that leaves open additional claims by some employers as to their right to continue to make employment decisions based on these criteria.

Justice Neil Gorsuch’s majority opinion states that the decision does not preclude later defendants from claiming a right to continue discriminating based on religious reasons. While these claims were not raised in the consolidated Bostock cases, Justice Gorsuch stated that such challenges will require separate consideration. Religious challenges to Bostock could take several forms. First, some churches and other religious organizations are likely to claim that the existing ministerial exemption to Title VII equally applies to decisions based on sexual orientation and gender identity with respect to employees with spiritual duties.

More broadly, the Supreme Court noted that Religious Freedom Restoration Act of 1993 (RFRA) “prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.” Private companies may claim that RFRA allows them to make employment decisions based on their individual owners’ religious beliefs, and that it supersedes Title VII’s requirements. Such plaintiffs would need to get around arguments that this reasoning would equally apply to decisions based on race, national origin, religion, etc.

While Bostock provides LGBTQ employees with significant protections over workplace discrimination, these issues are far from settled. Future litigation will surely delineate the limits of these protections.