LGBTQ Circuit Split, Meet the Religious Exemption

By: Amy Epstein Gluck

Late last week, a 1000-member church group in Texas sued the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act of 1964 (Title VII), the federal anti-discrimination law.

This group alleges that—despite the absence of a prohibition of discrimination based on sexual orientation and gender identity in the actual text of Title VII—the EEOC wrongfully claims that Title VII prohibits workplace discrimination based on sexual orientation or gender identity and interprets the prohibition of discrimination based on “sex” to include discrimination based on or because of a person’s sexual orientation or gender identity under two EEOC rulings: Baldwin v. Foxx (deeming sexual orientation discrimination a “sex based consideration,” which I wrote about here) and Macy v. Holder (transgender discrimination is discrimination based on sex because it inherently involves taking gender—and therefore sex—into account).

Why wrongfully?

Because, the group claims, the EEOC fails to recognize a religious exemption for a religious group’s opposition to homosexual or transgender status, which, they allege, violates the Religious Freedom Restoration Act (RFRA) and the First Amendment. You can read the complaint here.

Wait, why should this be a thing?

Now remember, my partner Rich Cohen and I have blogged here, here, and most recently here, that the federal appeals courts are divided about whether Title VII prohibits sexual orientation and gender identity discrimination since these are not explicitly protected classes in the text of Title VII. (For the record, neither is “[sex-based] harassment” nor “pregnancy” yet both are considered sex discrimination.)

Anyway, the plaintiffs in this recently-filed complaint noticed this omission too and are not pleased to see the RFRA fall by the wayside. Thus, the group seeks to enjoin the EEOC from enforcing anti-discrimination policies against any employer that objects to homosexual or transgender-based discrimination or harassment on religious grounds. They assert, inter alia, that

The text of Title VII makes no exemptions or accommodations for employers that hold sincere religious objections to homosexuality or transgender behavior… Nothing in Title VII exempts any religious employer from the statute’s prohibition on sex discrimination.


The EEOC refuses to acknowledge that RFRA [and the First Amendment] limit[s] its ability to enforce Title VII against employers who object to homosexual and transgender behavior on religious grounds. And the EEOC readily brings lawsuits against Christian businesses that oppose these behaviors without regard to their rights under the RFRA and the First Amendment.

What exactly do they want? A judgment stating that the EEOC’s interpretation of Title VII violates both RFRA and the First Amendment because it excludes employers exempt on the basis of sincerely held religious objections to homosexuality or transgender status.

This is one to watch because, as my partner Eric Meyer wrote about here, a federal court recently concluded that RFRA could trump Title VII where accommodating a transgender employee would require the employer to violate its sincerely-held religious beliefs. The EEOC lost there.

BUT the EEOC’s Strategic Enforcement Plan for 2017-2021 includes a mandate for”[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex.”

( (anchor text suggestion: 3D illustration by Quince Media))

While the law remains unclear, especially since SCOTUS has not yet ruled on the circuit split at the appellate level, many employers opt to include LGBTQ status in EEO policies and in training. And SCOTUS has clarified (in Oncale v. Sundowner OffshoreServices) that Title VII prohibits same-sex harassment.

Employer Takeaway

So, what do we do while we wait for further clarification from SCOTUS? Does the EEOC’s position violate RFRA? Is this something deserving of employers’ extra attention?

I think it depends what kind of employer you are, but as I noted here, and as I’ve blogged about often, to eradicate sexual harassment and other forms of unlawful harassment, we need to really consider an organization shift. Organizations that tolerate offensive behavior “typically have far greater problems with sexual harassment.” Scientific studies have shown that when a company’s climate does not tolerate such behavior, it can inhibit harassment, “even by those with a propensity toward such conduct.” With such a cultural shift, we get diversity, inclusion, and less harassment and discrimination.

Accordingly, and feel free to disagree, while I do not know the plaintiffs or their missions, I think such a declaratory judgment would open the door for employment discrimination based on a person’s sexual orientation or gender identity under the guise of “it’s against my religion.” I’m thinking we’re seeking more equality inclusivity regardless of a person’s gender, sexual orientation, or gender identity or expression, not less. We’ll keep you posted.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.