On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act barring sex discrimination in the workplace also protects LGBTQ employees from being fired or disciplined based on their sexual orientation.
Writing for the majority, Justice Neil Gorsuch noted, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The Court’s ruling involved three separate cases: one plaintiff who worked as a child welfare advocate before being fired for joining a gay recreational softball league; a second plaintiff who worked as a skydiving instructor in New York before being fired because he was gay; and a third plaintiff, a transgender woman who was fired from her job as a funeral home director in Garden City, Michigan.
SCOTUS Decision’s Impact on Religious Organizations
Title VII applies only to employers with 15 or more employees, but California’s anti-discrimination statute covers employers with 5 or more employees. California antidiscrimination law is also broader than federal law; in California, it is illegal for an employer to discriminate because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person.
While Section 702 of Title VII exempts religious organizations from the ban on religious discrimination in employment practices, these organizations are still subject to Title VII’s ban on employment discrimination based on race, color, national origin, or sex, except when it comes to employment decisions that involve members of the clergy.
The 2012 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. affirmed what is known as the “ministerial exception,” which prohibits civil courts from settling disputes between ministers and churches. That ruling made all disputes involving clergy — including those based on sex discrimination — off limits to the civil courts.
On July 8, 2020, the Supreme Court’s ruling in Our Lady of Guadalupe School v. Morrissey-Berru updated and extended the ministerial exception to include others providing religious instruction, not just those with the title of “minister.”
Following the Supreme Court’s ruling in Bostock, churches and other religious organizations may face difficult challenges when adhering to religious doctrines concerning sexuality that conflict with the expanded Title VII protection for “sex.” Whether or not religious organizations may be exempt from Bostock based on First Amendment principles will likely be decided by future litigation. In the meantime, there are some safeguards these organizations should consider to help protect their First Amendment free exercise rights and mitigate against legal exposure:
- The organization’s corporate purpose and mission statement should clearly articulate the religious nature of the organization.
- Organizations that maintain certain doctrinal beliefs about sexuality should clearly articulate those beliefs using religious references in a Statement of Faith or Beliefs within governing documents.
- Implement an employee code of conduct that states clearly the doctrinal, religious standards for permissible behavior.
- Make religious standards, qualifications, and expectations clear in job descriptions and offer letters for each position. When appropriate, be sure to identify positions as “ministerial.” For jobs that are not ministerial, consider including “bona fide occupational qualifications” (BFOQ), which are employment qualifications that employers are allowed to consider when making employment decisions. BFOQs provide key protections for employers that need to hire those who conform with an organization’s beliefs and practices for certain positions.
- Require employees to agree to the organization’s Statement of Faith or any other specific religious standards if these are essential to the position.
The Church Law Center of California assists religious and secular nonprofits with governance challenges. We can help your organization examine its board procedures and develop good practices. To find out how we can be of help to your organization, call us at (949) 689-0437 or reach out to us through our contact page.