Federal Contractors, Title VII, and LGBT Employment Discrimination: Can Religious Organizations Continue to Staff on a Religious Basis?

A matter of keen debate in Europe and North America is the freedom of religious organizations to maintain their essential character by staffing with those of like-minded faith just as many nation-states are moving aggressively to eliminate forms of employment discrimination based on sexuality and the sexual practices of employees. In the United States the leading edge for addressing this issue is being worked out before a little known administrative office that oversees the terms and conditions of federal contracts. Effective April 2015, an amendment to a longstanding presidential executive order (EO) added ‘sexual orientation’ and ‘gender identity’ to the list of protected classes that are shielded from discrimination by private-sector employers that have secured a government contract. Enforcement fell to the Office of Federal Contract Compliance Programs in the US Department of Labor, the agency with oversight of all contracts for the purchase of goods and services. Even before this recent amendment, the EO exempted religious employers from some forms of regulation of their employment practices, the exemption having been borrowed from the plenary civil rights act governing federal oversight of employment discrimination nationwide. The principal question addressed in this article is whether religious organizations with US contracts now have to comply with the new restrictions on employment discrimination based on sexual orientation and gender identity, or does the EO’s pre-existing religious exemption serve to adequately defend employers acting upon their sincerely held religious beliefs. The question is poignant because now, for the first time, the definitions of two federally protected classes appear to be at odds with sexual morality as historically taught by the nation’s major religions. From the perspective of the religious employer, the new EO introduces a burden impacting longstanding religious beliefs. Religious employers, certainly those who are both vibrant and integrated in their faith practices, strive to build a community of employees that are faithful to a set of doctrinal beliefs and who are fully committed to the institution’s faith-shaped mission. Nevertheless, * Carl H Esbeck is the RB Price Professor and Isabelle Wade & Paul C Lyda Professor of Law Emeritus at the University of Missouri. Email: esbeckc@missouri.edu. I want to thank those who read earlier drafts of this article and provided valuable suggestions: Stephanie Barclay, Thomas C Berg, Stanley Carlson-Thies, Kimberly Colby, Richard W Garnett, Luke Goodrich, Matthew Kacsmaryk, Douglas Laycock, Christopher C Lund, Steven T McFarland, Michael Moses, and Kevin C Walsh. VC The Author 2015. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com 1 Oxford Journal of Law and Religion, 2015, 0, 1–30 doi: 10.1093/ojlr/rwv046 Article unless exempt these religious employers are now ordered to act otherwise or forfeit valuable contracts—a classic dilemma of conscience and coercion. Those who argue that the EO’s religious exemption is inapplicable make two points. First, they maintain that the exemption is a defence available only when the initial claim by the employee-complainant is one of religious discrimination—as distinct from the onset claim being based on an employee’s sex or sexual orientation. Second, they argue that the exemption is narrow, not one spanning the employer’s religion in all its aspects but an exemption limited to the employer being able to prefer only those who identify with the employer’s church or religious denomination. Neither point has support in the plain text of EO’s religious exemption or in the plenary civil rights act from which the exemption was modelled. With respect to the first point the case law is indecisive, never really locking onto the issue and resolving it. But the weight of the practice is contrary to the point, for most courts have allowed religious employers to defend against a claim no matter the protected class by introducing evidence of the employer’s religious motivation behind its adverse employment decision. And the second point directly contradicts the plenary act’s definition of ‘religion’ as embracing all aspects of religious belief or practice, hence not amenable to a narrow reading. Much is at stake regarding the exemption’s scope under the EO, for that resolution will likely dictate the sweep of the exemption under the civil rights act covering employment discrimination nationwide.