Discriminating on the Basis of Gender Norms, and the Possible Reach of Hobby Lobby
Among those big unanswered questions lurking in the shadows of Hobby Lobby and Conestoga Wood Specialties is whether or not RFRA could be used to undermine existing protections against discrimination, like those under Title VII of the Civil Rights Act, the federal law that outlaws discrimination on the basis of a host of factors, including sex. Add to that question the role of state-level RFRAs like the one recently passed in Mississippi, which appears to be an open invitation for businesses to discriminate in the name of religious belief, plus the fact that state and local anti-discrimination laws, when they exist at all, ofter a patchwork of protections, and the legal landscape that emerges is frankly a mess.
Title VII prevents employers from discriminating in their employment practices (such as hiring, firing, and promotions and pay) based on race and color, sex, national origin, and religion. The law includes a broad exemption for religious employers and provides that houses of worship and religiously affiliated organizations like universities and hospitals may discriminate in employment practices on the basis of religion, allowing them to prefer members of their own faith in hiring regardless if the employee’s work is religious in nature or not.
But Title VII does not recognize a religious exemption to its prohibition on sex discrimination. That’s important in the context of the contraception challenges, and as more and more employers voice workplace objections to gender equality as an issue of religious freedom.
Despite the fact that the government moved to dismiss TerVeer’s claims, it is important to note that Chai Feldblum, commissioner of the Equal Employment Opportunity Commission (EEOC) and key advocate behind advancing workplace protections for the LGBT community, has made the case that marriage equality helps pave the way for workplace protections under existing laws like Title VII. Feldblum argues:
[A]ssume a male employee is fired because he marries another man. The reason for that employee’s firing makes reference to the sex of the people involved, and the antipathy to marriage by a same-sex couple is deeply embedded in a history of gender roles and sex stereotypes. From my perspective, that is a simple case of sex discrimination.
In other words, like the administration’s position on marriage equality, its position on workplace protections for the LGBT community appears to be evolving.