Developments To Monitor In 2021: LGBTQ+ Rights And Freedom Of Religion In The Workplace

Jackson Lewis P.C.

As 2021 begins, Jackson Lewis is again providing “The Year Ahead for Employers” to clients. This comprehensive report covers all aspects of employment law and highlights 2020 issues, trends, legislative and regulatory activity, and litigation that employers need to be aware of and what to look out for in 2021. Highlights from the Litigation section of the report include our analysis of recent U.S. Supreme Court cases impacting LGBTQ+ rights and religious freedom in the workplace.

LGBTQ+ Rights – Sexual Orientation and Gender Identity

In June 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The Court issued its decision in three consolidated cases: Bostock v. Clayton County, Georgia590 U.S. __, 140 S. Ct. 1731; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. By finding that Title VII bars workplace discrimination on the basis of sexual orientation and gender identity, the Court’s decision supports LGBTQ+ individuals seeking protection under federal and state gender anti-discrimination laws.

The Ministerial Exception and Freedom of Religion

In July 2020, the U.S. Supreme Court expanded the scope of the “ministerial exception,” which precludes application of Title VII employment discrimination laws to questions involving the employment relationship between a religious institution and its ministers. In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267; and St. James School v. Biel,  591 U.S. __ , 140 S. Ct. 249 (2020), the Court held that two teachers were barred from suing their school-employers for age and disability discrimination because the ministerial exception applies to employees who are performing vital religious duties, regardless of the employees’ official titles or religious training. The fact that the teachers were not ministers and did not have significant formal religious training did not matter. The Court’s new test appears to be less rigid and significantly more deferential to the employer’s definition of vital religious duties. Further, the Court appears willing to apply the ministerial exception to a wider range of employers and employees, not simply those working at houses of worship or clearly religious organizations or schools. These issues will need to be clarified in future cases and litigation.

With the solidification of a conservative majority on the Court following the elevation of Justice Amy Coney Barrett, the Court likely will be more critical of what it views as encroachments on religious liberty in the workplace. Indeed, on November 25, 2020, the Court enjoined the State of New York’s attempt to restrict the number of worshipers who can attend indoor religious services to 10 individuals in “red” zones, and 25 in “orange” zones, despite the State’s public health and COVID-19 rationale for implementing the restrictions. The majority had held that: (1) New York’s proposed restrictions were not narrowly tailored; (2) New York failed to allege or demonstrate that attendance at religious services resulted in the spread of COVID-19; and (3) the proposed restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.” Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. __ (2020). The Court’s stance on religious liberty also was on display during the November 4 oral arguments in Fulton v. City of Philadelphia, a case in which a Philadelphia social services agency affiliated with the Catholic Church declined to work with same-sex couples as foster parents. See Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), cert. granted, No. 19-123, 140 S. Ct. 1104 (Feb. 24, 2020). The justices’ questions seem to indicate unease over stepping on the agency’s religious freedoms. A decision is expected in the case by June 2021.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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