On July 21, 2014, President Obama signed an executive order amending two Equal Employment Opportunity clauses, including "gender identity" as a category of unlawful employment discrimination. (Read the full text of the order here.) Despite the petitions of many religious leaders, faith-based organizations, academics, and legal scholars, the order did not contain any references to religious freedom protections.
By: Rose Saxe
On July 21, 2014, President Obama made history, signing an Executive Order barring federal contractors from discriminating on the basis of sexual orientation and gender identity. Despite calls by some for a broad exemption allowing federal contractors that object to hiring LGBT individuals on religious grounds using taxpayer dollars, the Order does not exempt religious organizations.
At the same time, President Obama left intact Executive Order 13279, signed by President George W. Bush in 2002, which is drawn virtually word for word from Title VII of the Civil Rights Act of 1964, and allows religiously affiliated employers to consider religion in some of their employment decisions, specifically by favoring those of the same faith in hiring decisions. Courts have been clear that this provision does not give employers a blank check to violate Title VII’s nondiscrimination protections but rather allows a limited carve-out for religiously affiliated employers. Because of the similarity in language, understanding the Title VII exemption is important to understanding the interplay between the new Executive Order and Executive Order 13279.
Arguing that LGBT discrimination should be treated no differently than race, sex, or national origin discrimination for purposes of the Executive Order, a group of 59 distinguished legal scholars recently wrote to President Obama, explaining that the existing Executive Orders do not permit religious organizations that contract with the federal government to discriminate based on race, sex, or national origin, regardless of the motivation of such discrimination. In a response on this blog, Professor Carl Esbeck argues that these scholars “understate” the scope of the existing religious exemptions in Title VII. Using the hypothetical example of a nurse claiming sex discrimination by a religious school, Professor Esbeck implies that Title VII gives religious organizations a categorical right to terminate any employee who does not follow their religious code of conduct.
But this hypothetical discussion omits a critical difference between terminating an employee for an unprotected reason—such as engaging in extramarital sex—and terminating an employee because of his or her sex or race. Many of those who argued for an exemption to the Executive Order wanted religious organizations to be able to discriminate against LGBT people, consistent with their faith. So, it’s appropriate to consider what happens when a religious organization asserts that it is entitled to fire a woman for becoming pregnant while unmarried, or to engage in other forms of discrimination barred by Title VII, because the discrimination is consistent with their religious tenets.
In fact, Title VII does not allow religious organizations to make employment decisions on the basis of race, sex, or national origin—even where religiously motivated. Courts have held that religious schools violate Title VII’s prohibition on sex discrimination by giving family health benefits only to male employees, even though the policy was based on a sincerely held belief that only men are “heads of households.” See, e.g., EEOC v. Fremont Christian School, 781 F.2d 1362, 1365-70 (9th Cir. 1986). And the federal courts have uniformly rejected the notion that Title VII’s religious exemption permits religious schools to fire unmarried employees because they become pregnant, even where the schools objected to the pregnancy on religious grounds. That is because, as one judge noted, “Title VII generally applies when a woman has been terminated for pregnancy, regardless of the reason put forth by the employer as to why that pregnancy justifies termination”—otherwise, “women would be subject to termination for something that men would not be, and that is sex discrimination, regardless of the justification put forth for the disparity,” Vigars v. Valley Christian Ctr. of Dublin, 805 F. Supp. 802, 806 (N.D. Cal. 1992); see also Dolter v. Wahlert High Sch., 483 F. Supp. 266, 267-71 (D. Iowa 1980). This same reasoning applies to the new non-discrimination Executive Order. Thus, federal contractors will no longer be able to fire or refuse to hire LGBT people because of their gender identity or their sexual orientation—including because they are in same-sex relationships—regardless of the motivation for such discrimination.
In the case of Little v. Wuerl, 929 F.2d 951 (3d Cir. 1991), also discussed by Professor Esbeck, the Third Circuit held that the Title VII exemption allowed religious organizations to terminate an employee whose conduct violated the organization’s religious precepts. The defendant Catholic parish was aware that Ms. Little was a Protestant from the time it hired her to teach at a parochial school (Id. at 945). She was terminated several years later for remarrying after she had divorced, and she subsequently brought a Title VII claim for religious discrimination (Id. at 946). The court rejected her claim, reasoning that “the permission to employ persons “of a particular religion” includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.” Because Little involved a claim of religious discrimination (the employee argued she was fired for failure to conform with her employer’s religious beliefs regarding marriage and divorce), it says nothing about whether Title VII permits religiously-motivated discrimination on any other grounds.
Professor Esbeck is correct that several courts have held that a policy banning extramarital sex—applied uniformly to male and female employees—does not violate Title VII. But, as those courts explained, that is because engaging in premarital sex is not protected under Title VII. This may seem like a minor distinction, but it’s not. Our civil rights laws allow religious organizations to prefer people of their own faith, and to take faith into account in hiring for all positions—but religious organizations do not have the right under either Title VII or Executive Order 13279 to discriminate based on race, sex, pregnancy, or any other prohibited characteristic.
Ultimately, our nation has not, in fact, “bracketed off religious conscience” when it comes to ending discrimination. In fact, Congress rejected demands for a blanket exemption for religious organizations when it passed the Civil Rights Act of 1964, and again in 1972. Executive Order 11246 has prohibited workplace discrimination by government contractors for decades without burdening religious liberty. It is in the context of that history—of advancing the government’s compelling interest in ending discrimination, regardless of the motivation—that adding LGBT protections to Executive Order 11246, alongside existing protections on discrimination based on race, sex and national origin, can most properly be understood as continuing the arc towards justice.
Rose Saxe is a senior staff attorney at the ACLU Lesbian Gay Bisexual & Transgender and AIDS Projects, where her work focuses on ensuring equal treatment of lesbians, gay men, bisexuals, transgender people, and people living with HIV.
This piece was originally authored on July 28, 2014 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affair.