I think Marty has the better argument here. The exemptions to the EO and Title
VII allow certain religious organizations to favor co-religionists in hiring,
but that exemption does not allow them to discriminate on prohibited grounds,
even if they do so based on religious belief. Boyd is not to the contrary --
that case involved discrimination based on religiously-prohibited conduct,
namely sexual activity outside marriage, not discrimination on the basis of
sex. Similarly, Little v. Wuerl involved someone who was fired for a divorce
and remarriage, not for being a woman (rather than a man) who divorced and
remarried (outside the rules of the faith).
Cases where the religious organization wanted to discriminate on prohibited
grounds, even pursuant to a religious belief, have come out the other way. See,
e.g., EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364-67 (9th Cir. 1986)
(church owned school violated Title VII by providing health insurance to
married men but not married women, even though such discrimination reflected a
religious belief that only married men can be heads of households).
Now that sexual orientation is a prohibited ground under the EO, a religious
organization could not discriminate on the basis of sexual orientation even for
religious reasons. Nor could it discriminate on the basis of activity that is
correlated with sexual orientation, I would think. See Lawrence v. Texas, 539
U.S. 558, 575 (2003) (O'Connor, J., concurring) ("“[T]he conduct targeted by
this law is conduct that is closely correlated with being homosexual. Under
such circumstances, [the] law is targeted at more than conduct. It is instead
directed towards gay persons as a class.”); Elane Photography v. Willock, 309
P.3d 53, 61 (N.M. 2013). ("[t]o allow discrimination based on conduct so
closely correlated with sexual orientation would severely undermine the purpose
of [New Mexico’s antidiscrimination law]."). I admit there is room for argument
in the cases on this point, though, and we can expect litigation on it.
Nelson
On Jul 23, 2014, at 4:48 PM, Kniffin, Eric N.
<eknif...@lrrlaw.com<mailto:eknif...@lrrlaw.com>> wrote:
Marty is correct: Monday’s executive order leaves Section 204—the religious
exemption Bush added in 2002—as is. The tweaks to the existing order are minor:
in the only four places where the phrase “sex or national origin” appears
(three times in 202 and once in 203), that phrase is amended to read “sex,
sexual orientation, gender identity, or national origin.” That’s it.
However, I take issue with Marty’s statement that Title VII and the executive
order do not “give the organization the right, even on religious grounds, to
discriminate on the basis of sex, or race, or sexual orientation. . . .”
That’s not the law. Marty’s linked text (p.32) cites Boyd v. Harding Acad. of
Memphis, Inc., 88 F.3d 410 (6th Cir. 1996), where a court upheld a religious
school’s decision to fire an unmarried pregnant teacher.
The school won because the term “religion” in the Title VII is interpreted
broadly, to include “all aspects of religious observance and practice, as well
as belief.” 42 U.S.C. § 2000e(j). This allows a qualifying religious entity to
evaluate employees based not only on what they believe, but also whether they
act in conformity with those beliefs. See Hall v. Baptist Mem’l Health Care
Corp., 215 F.3d 618, 624 (6th Cir. 2000); Little v. Wuerl, 929 F.2d 944, 951
(3d Cir. 1991). Thus, the “religion” exemption protects a religious
organization’s right to exclude employees based on conduct that both (1)
expresses one’s sexual orientation and gender identity and (2) violates the
church’s moral teachings.
Practically speaking, such organizations have to answer plaintiffs’ charges
that the adverse decision was not based on “religion” but on prohibited bases.
That is why religious employers should be prepared to demonstrate that they
have applied behavioral standards evenhandedly. For example, the court in Boyd
might well have upheld the pregnant teacher’s sex and pregnancy discrimination
if the school had not been able to show that it had previously fired male and
female employees for premarital sex, even when no pregnancy resulted. 88 F.3d
at 412, 414.
Eric
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From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, July 23, 2014 1:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the President's executive order on sexual
orientation discrimination
I don't think that's right, Eugene. Or, more to the point, you are correct that
the sec. 204 exemption is not "extended" to sexual orientation discrimination
proscribed in sec. 202 -- but that that's true, as well, for all other forms of
forbidden discrimination, and retaliation, that are proscribed in section 202
of the E.O. except the prohibition on religious discrimination. That is to
say: The 204 exemption is only a partial exemption from the ban on religious
discrimination, allowing certain contractors to prefer coreligionists even if
that would otherwise violate the ban on religious discrimination.
The exemption - both in 204 and in title VII -- does not give the organization
the right, even on religious grounds, to discriminate on the basis of sex, or
race, or sexual orientation, or the fact that an employee sued to vindicate one
of those protections, etc.
See pages 30-32 of http://balkin.blogspot.com/olc.charitablechoice.pdf
On Wed, Jul 23, 2014 at 12:51 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
My apologies if I missed this in past list traffic on the
subject, but I just wanted to check my understanding: As I read it, under an
existing executive order,http://www.dol.gov/ofccp/regs/statutes/eo11246.htm,
federal contractors can’t discriminate based on race, color, religion, sex, or
national origin, but religious institutions are exempt from the ban onreligious
discrimination, when it comes to discriminating in favor of “individuals of a
particular religion” (sec. 204). The President’s new executive order,
http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen,
bars federal contractors from discriminating based on sexual orientation and
gender identity, but does not extend the sec. 204 exemption to sexual
orientation discrimination. One argument against this order is (in effect)
that sexual orientation discrimination should be treated more like religious
discrimination (in the sense of being exempted when done by a religious
institution) than like race discrimination (which is not exempted even when
done by a religious institution).
Do I have the facts right on this? I’m setting aside here what the right
answer ought to be; I just want to make sure I’m not misunderstanding the legal
scheme. Thanks,
Eugene
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