The Oklahoman

Q&A WITH DEREK ENSMINGER

- PAULA BURKES, BUSINESS WRITER

Recent case addresses tension between laws protecting religious exercise

Q: What are the federal laws protecting religious exercise?

A: There are two: the Free Exercise Clause of the First Amendment to the U.S. Constituti­on and the 1993 Religious Freedom Restoratio­n Act. Regarding the Free Exercise Clause, the U.S. Supreme Court has held that a “neutral, generally applicable” law survives constituti­onal scrutiny. The protection provided by this standard is narrow. Congress therefore enacted the Religious Freedom Restoratio­n Act, which states: “Government shall not substantia­lly burden a person’s exercise of religion even if the burden results from a rule of general applicabil­ity,” unless the burden is the least restrictiv­e means of furthering a compelling government­al interest. The act only applies to the federal government, not states or municipali­ties. Some states, including Oklahoma, have enacted their own “mini-RFRAs” providing religious exercise protection from state and local laws. Because the Religious Freedom Restoratio­n Act provides broader protection, it’s typically the primary federal law relied on by religious objectors. Indeed, the act was the statute relied on by the companies in Burwell v. Hobby Lobby Stores, Inc., the landmark 2014 case where the U.S. Supreme Court held that closely held corporatio­ns are exempt from federal contracept­ive coverage regulation­s that violate the sincerely held religious beliefs of the companies’ owners.

Q: Can closely held employers invoke the Religious Freedom Restoratio­n Act to justify employment discrimina­tion that’s otherwise prohibited by federal law, such as Title VII?

A: The U.S. Court of Appeals for the Sixth Circuit recently addressed the issue in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. In that case, the Equal Employment Opportunit­y Commission brought suit on behalf of a transgende­r employee who was terminated shortly after informing the employer, a funeral home, that the employee intended to transition from male to female. The commission alleged that the employer violated Title VII by discrimina­ting against the employee on the basis of her transgende­r or transition­ing status. The employer argued that transgende­r status wasn’t protected under Title VII and that imposing Title VII liability on the employer would substantia­lly burden the owner’s free exercise of religion, as prohibited by the Religious Freedom Restoratio­n Act. Regarding the first issue, the court fell in line with the EEOC and many federal courts in holding that transgende­r discrimina­tion is indeed prohibited “sex” discrimina­tion under Title VII. The court reasoned that “it is analytical­ly impossible to fire an employee based on that employee’s status as a transgende­r person without being motivated, at least in part, by the employee’s sex” and that transgende­r discrimina­tion “necessaril­y implicates Title VII’s proscripti­ons against sex stereotypi­ng.” Regarding the Religious Freedom Restoratio­n Act, the court held that the EEOC’s enforcemen­t of Title VII against the employer doesn’t violate the employer’s rights under the act. The court reasoned that the employer’s burden wasn’t “substantia­l” because tolerating an employee’s gender identity isn’t “tantamount to supporting it” and “bare compliance with Title VII — without actually assisting or facilitati­ng (the employee’s) transition efforts — doesn’t amount to an endorsemen­t of (the employee’s) views.” The court further held that, even if the employer’s religious exercise were substantia­lly burdened, enforcemen­t of Title VII is the least restrictiv­e means of furthering a compelling government interest, namely eradicatin­g sex-based discrimina­tion.

Q: What is the takeaway for employers?

A: The recent Sixth Circuit decision is important as it’s the first federal appellate decision to address a tension between the Religious Freedom Restoratio­n Act and Title VII. Since the issue involves two hot-button topics — religious liberty and gender identity — it’s likely that the case law will continue to develop. Indeed, the U.S. Supreme Court soon will release an opinion in a highly publicized case regarding a dispute between a Christian baker’s religious beliefs and state public accommodat­ion laws. Although that case doesn’t involve the employment context or Religious Freedom Restoratio­n Act (because the law being challenged is a state law), the U.S. Supreme Court’s decision may provide some direction for balancing religious liberty with civil rights protection­s. For now, closely held employers should be hesitant to lean on the Religious Freedom Restoratio­n Act as a viable defense to Title VII liability.

 ??  ?? Derek Ensminger is an employment law attorney with Hartzog Conger Cason & Neville.
Derek Ensminger is an employment law attorney with Hartzog Conger Cason & Neville.

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