by Edward H. Trent
The United States Supreme Court has a rich history of protecting individual religious liberty from intrusion by the state. The Court has defended a person’s ability to believe, worship, and live according to one’s faith. Over the last 50 years, with changing cultural views on sexuality in particular, conflicts between faith and culture have more often turned into conflicts between one person’s religious convictions and another’s right to sexual freedom. From contraception, to homosexuality, to the definition of marriage, to gender identity, the conflicts between religious views and societal acceptance of more liberal views of human sexuality have pitted the government against business, employer against employee, and employee against employee, with vocal advocacy groups on all sides. Not surprising, the courts have been asked to balance these competing interests.
On June 30, 2014, the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., declaring that the religious liberty rights of privately held businesses trumped the government’s desire to provide free contraception through employer health care plans. On December 5, 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The issue before the Court is whether private business owners must provide services in support of same-sex wedding ceremonies/celebrations when doing so would violate the business owner’s religious beliefs regarding marriage. Here, the Court must determine how to properly balance individual religious liberty interests and federal and state interests in prohibiting and eradicating discrimination.
On October 6, 2017, the Department of Justice issued a Memorandum to all Executive Departments and Agencies requiring that the First Amendment’s protection of the Free Exercise of Religion be given the broadest possible protections; including the application of Title VII. The purpose of the Memorandum is evident from the introduction.
Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. . . . Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.
Memorandum p. 1. The Memorandum also notes:
The Free Exercise Clause protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs. . . . [T]he exercise of religion encompass[es] all aspects of observance and practice, whether or not central to, or required by, a particular religious faith.
Memorandum Principle No. 2 (emphasis added).
Against this backdrop is a section in the EEOC’s January 2017Proposed Enforcement Guidance on Unlawful Harassment that when read in context with other provisions highlights the growing tension between religious beliefs and individual sexual autonomy.
Special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression: Because Title VII requires that employers accommodate employees’ sincerely held religious practices and beliefs in the absence of undue hardship, employers may violate Title VII if they try to avoid potential coworker objections to religious expression by preemptively banning all religious communications in the workplace. Employers, however, also have a duty to protect workers against religious harassment. Employers would not be required to accommodate religious expression that creates, or threatens to create, a hostile work environment.
Guidance p. 65 (emphasis added). The EEOC does not clarify when or what type of religious expression would create a hostile work environment other than possible persistent, unwelcome proselytizing. However, one other example is found in the Guidance, namely when an employee makes “derogatory” comments concerning sexual orientation. The EEOC’s example, however, fails to place the presumably offensive comments in context, fails to give any examples of comments considered derogatory (unlike its numerous other examples of harassing behavior), and states that comments need not be directed at any employee at all but may simply be overheard. Guidance Example 3 (describing “facially discriminatory” conduct). In short, the EEOC’s proposed Guidance suggests that sexual orientation takes precedence over an overheard religious discussion disapproving of the behavior.
This conflict between religious beliefs and the EEOC’s position on sex discrimination or sexual stereotyping creates an issue for employers on what to do when employees discuss their religious beliefs about sexual morality, specifically when it concerns sexual orientation or gender identity, and another employee finds such religious beliefs offensive. Employees also have questions on whether they must leave their religious convictions at the door of their employer. Likewise, business owners who operate their business in accordance with their religious beliefs have questions on when, or if, they can decline services in support of particular causes, events, or functions or whether they can establish work rules consistent with their religious beliefs. The issue is often how to balance one’s right to religious free exercise when it comes into conflict with another’s right to employment, commerce, or personal, private behavior. The Memorandum attempts to address these and other concerns when it comes to the application of federal law and the constitutionally mandated protections for religious free exercise.
In the employment context, Title VII is clear that employees are entitled to reasonable accommodation for their religious beliefs and practices. Memorandum Principle 16 and 17. The EEOC upheld this requirement in EEOC v. Star Transport, Inc., defending two Muslim truck drivers who refused to transport alcohol as part of their jobs. The EEOC argued and the court held the employer’s decision to terminate the employees rather than accommodate their beliefs violated Title VII. Employers must take requests for religious accommodation seriously and work with the employee to determine if an accommodation is available, particularly when job duties conflict with sincerely held religious beliefs.
With the EEOC’s expanded interpretation of “sex” under Title VII – going beyond biological sex (male or female) to also prohibit discrimination on the basis of sexual orientation and gender identify – some employees are discovering that holding traditional religious views on sexual behavior can get them in trouble with their employer. One instance involves the former Fire Chief for the City of Atlanta, Kelvin Cochran v. City of Atlanta. There, Chief Cochran asserts he was terminated after the City learned he had written a short book for a men’s Bible study at his church in which he discusses Biblical teaching on sexual morality, including the prohibition on sexual relations between people of the same-sex and any sexual relations outside of marriage. Although there was no evidence he had treated anyone unfairly due to sexual orientation or religion, Chief Cochran was terminated because, he asserts, he had the audacity to publish his personal, Christian beliefs on sexual morality, views the City found to be derogatory on the basis of sexual orientation.
There are occasions when an employer’s operation of its business consistent with the employer’s religious beliefs conflicts with non-discrimination laws. Under federal law, when a law of general applicability, such as Title VII, creates a substantial burden on one’s religious free exercise, the law can only be upheld if it is narrowly tailored to support a compelling governmental interest and is the least restrictive means available. Memorandum Principle 14. One example where this principle is being considered is EEOC v. RG and GR Harris Funeral Home. There the EEOC claimed sex discrimination when the plaintiff, a biological male, was terminated after telling the employer that he was transgender and would be presenting as female going forward. The trial court found that not allowing the plaintiff to dress according to the female dress code was sexual stereotyping, but granted summary judgment in favor of the employer because to allow a male to appear as a female violated the employer’s sincerely held religious beliefs regarding a person’s sex as an immutable characteristic not subject to change.
The court of appeals will have to determine the proper balance between the employer’s religious liberty and the individual employee’s rights under Title VII. The Memorandum notes that just because a third party may be affected does not mean that an exemption based on religious liberty should be unavailable. Memorandum Principle 15. How the courts will strike that balance, however, remains to be seen.
With the Memorandum, the current administration is requiring greater emphasis on protecting individual religious liberty when applying and enforcing federal law, but it remains to be seen how this directive will be implemented by the various federal agencies and how the courts will resolve conflicts between religious beliefs and non-discrimination laws. For employers, it is important to be aware of what is taking place in the workplace. When conflicts arise over personal beliefs, employers and supervisors need to address the matter and return the focus to the work at hand. Just as the courts will struggle with balancing various interests, so will employers when dealing with their employees. The Department of Justice has taken a step to remind all parties that it is fundamental to all basic rights that we protect and defend individual religious liberty even when culture appears to be rejecting traditional religious values.