Terry Bonnette, Partner, Nemeth Law PC presented on this topic at our Annual HR Conference last March. It is an important issue today as a number of factors have risen, making HR shake their heads in confusion. As seen in the news, the most vexing issue for employers today is how gender identity and sexual orientation rights are competing with religious beliefs and rights. With these issues spilling into the workplace, it is important for HR to have a game plan when these issues arise.
Earlier this year, the Supreme Court ruled in favor of a Colorado baker who refused to create a wedding cake for a same sex couple. In Masterpiece Cakes, the Colorado Civil Rights Commission ruled that Masterpiece Cakes had to make a cake for a same sex couple. The Supreme Court ruled that the commission’s order that that company “cease and desist” discriminating against same-sex couples violated the owner’s First Amendment right of free exercise of religion. This reasoning followed a previous Supreme Court case, Hobby Lobby, in which a sincerely held religious belief by a company allowed the company to not provide the contraceptive coverage in its health plan. Previously, the religious belief exception only applied to religious affiliated employers, such as churches.
Interestingly enough, the Supreme Court did not use the free speech argument of the First Amendment as a basis for the decision. Justice Kennedy, who wrote the Masterpiece decision, also wrote the Obergefell v. Hodges decision, which confirmed the validity of same sex marriages. It is speculated by legal scholars that “Justice Kennedy rejected a sweeping understanding of the First Amendment that would create a license to discriminate,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “Indeed, only two justices—Justice Clarence Thomas and Neil Gorsuch—accepted Masterpiece’s free speech claim, which would have radically altered the existing understanding of the First Amendment.” By using a broad-based approach to the First Amendment, it would undermine the Obergefell decision and allow people who disagree with same sex marriage to discriminate without repercussion.
How does this impact employers? The current administration is promoting religious beliefs over the rights of the LGBTQ community (contrary to the approach of most employers). Currently, R.G. and G.R. Harris Funeral Homes is appealing a 6th circuit decision that the funeral home engaged in unlawful sex discrimination when it fired an employee because she’s transgender. The owner's action was based on “sincere traditional Baptist religious beliefs.” Curiously, the petition is pitting the EEOC against the U.S. Department of Justice. The EEOC is defending the decision that sex is all encompassing, while the DOJ is arguing the word “sex” only applies to the traditional definition of the word.
The current administration has also been implementing the “sincerely held religious belief” approach throughout various agencies’ actions. For example, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2018-3 which permits religious exemption for the “employment of individuals of a particular religion to perform work connected with the carrying on of such [entity’s] activities.” Specifically, OFCCP is required to respect the right of “religious people and institutions … to practice their faith without fear of discrimination or retaliation by the Federal Government.” Although this directive does not discuss gender identity or sexual orientation, it could be implemented to do so.
HR needs to take a step back and re-strategize. The current political climate could be seen as polarizing the workplace. These issues don’t just impact the employee brand; they can also impact the bottom line. Therefore, it is recommended that the strategy and approach to these issues be collaborated with legal counsel to reduce the risk of a lawsuit.
Sources: ALM Media 6/5/18, NY Post 10/29/18, Jackson Lewis 8/13/18, Constangy Brooks Smith & Prophete LLP 10/26/18