Q&A WITH DEREK ENSMINGER
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.