Stanley Carlson-Thies

The Equality Act, introduced into the House and the Senate in late July, 2015, is intended to comprehensively prohibit under federal law, discrimination based on sexual orientation, gender identity, and sex. It includes some religious exemptions. The exemption in the case of employment is not adequate though to protect religious organizations.

The Equality Act (H.R. 3185; S. 1858) would add “sexual orientation” and “gender identity” to the current list of prohibited bases for job discrimination in Title VII of the 1964 Civil Rights Act: race, color, religion, sex, national origin. Title VII applies to employers of 15 or more FTEs.

Title VII includes two religious organization exemptions: one for religious organizations generally and one for religious educational institutions. By these exemptions, religious schools and other religious organizations are free to consider religion when making their employment decisions, and this right applies to every position in the organizations. This statutory religious staffing exemption is different than the judge-created “ministerial exception” which the U.S. Supreme Court unanimously upheld in the 2012 Hosanna-Tabor case, which essentially allows religious organizations to disregard employment nondiscrimination rules entirely when selecting their ministerial leadership. The Title VII exemption covers all positions but does not allow the religious organization simply to ignore the other prohibited bases of job discrimination; the ministerial exception supersedes all of the prohibited bases but only applies to ministerial or religious leadership posts.

By the Title VII exemptions, in general, a religious organization, even if it accepts government funds, is free to hire and fire employees based on whether the employees or prospective employees are compatible with its religious convictions and mission. In deciding compatibility, the religious employer may regard religion important only for some positions (e.g., the top leadership, a chaplain) or for every position; it may interpret compatible religion broadly (all Christians or any Jew) or narrowly (only Southern Baptists or only orthodox Jews); it may seek employees who do not actively thumb their noses at the organization’s moral views or it may have a detailed faith-based code of conduct.

What will be the consequences for religious staffing practices like these if sexual orientation and gender identity become prohibited bases of job discrimination, as the Equality Act proposes? A religious organization will remain free to consider religion when it hires and fires—but what will happen if the organization decides a job applicant is religiously unsuitable because of his same-sex marriage or other conduct or relationships related to the new protected categories? The organization is Catholic and he says he is Catholic, but the organization prizes not just a declaration of Catholic belief but a lifestyle that is compatible with the teachings of the Catholic Church, including generosity toward the poor, the cherishing of life from conception onward, and marriage as a life-long union of one man and one woman. Is its decision not to hire the applicant a (legal) employment decision based on religion or an (illegal) decision based on sexual orientation?

The Equal Employment Opportunity Commission, the federal watchdog on job discrimination, will likely claim the decision is an illegal act of sexual orientation discrimination. Will the courts agree? In general, they have ruled that the religious staffing exemption protects religion-based employment decisions beyond the narrow and formalistic question of whether the person claims to be of the same religion as the employer, and instead have accepted that the employer has to be free to assess the authenticity of that claim.

But the courts could rule the other way, narrowing the concept of “religion” when it intersects with SOGI. Such a formalistic religious hiring freedom will do little to enable religious organizations to maintain a robust religious identity, to constitute a community of like-minded people whose lives are witnesses to the religious commitments the organization professes to follow.

The religious organization exemption that, until recently, has always been part of the various Employment Nondiscrimination Act (ENDA) bills considered for two decades in the House and the Senate was a way to avoid this weakening of the religious staffing freedom: by exempting authentic religious organizations entirely from the proposed new SOGI nondiscrimination requirements, the religious staffing freedom would not be undermined even as LGBT employees and job seekers are protected in organizations with no religiously based convictions about LGBT conduct. The ENDA bill the Senate passed in 2013 with all Democrats and a few Republicans in support included the religious organization exemption, and some additional religious organization protections as well (the House never acted on the bill). Unfortunately, in drawing employment protection into the Equality Act, its proponents did not include a religious organization exemption but only left intact the existing Title VII exemptions.

Yet how protective those Title VII exemptions will be when SOGI nondiscrimination is forbidden is just the question. The question has already been put on the table by President Obama’s Executive Order of July 2014, prohibiting job discrimination on the bases of sexual orientation and gender identity by federal contractors. The federal contracting rules include a religious exemption like those in Title VII, but not a religious organization exemption as in the Senate ENDA bill. And now religious organizations that do or might engage in federal contracting are facing a big question and significant legal risk: if their religious employment policies include a conduct standard requiring conservative sexual morality, have those employment policies now become illegal, with the freedom to consider religion radically narrowed by the SOGI nondiscrimination requirements?

For the Equality Act to protect LGBT rights without undermining the religious freedom of faith-based organizations, its employment protections need to be significantly modified. One solution: a religious organization exemption can be added. The language for the exemption, and the accompanying non-retaliation language, can be taken directly from the Senate ENDA bill. Another solution: the addition of some words of clarification to Title VII. Those words would explain that the “religion” that religious employers are legally free to consider is more than a formalism but instead encompasses not only religious beliefs but also conduct standards rooted in those religious beliefs. Then religious employers who have religion-based employment policies and consistently apply them will continue to be free to build and safeguard staffs that reflect and embody the religious convictions that the organizations desire to honor.