(June 30, 2020 / JNS) The Supreme Court declared on June 15 that Title VII of the Civil Rights Act of 1964 prohibited employment discrimination against LGBT individuals. Many on the left and in the media considered this a sign of progress and a momentous occasion. Commentators on the right decried that the decision was undemocratic—legislation masquerading as a judicial opinion—and a significant problem for religious employers.
American Jews may be left wondering what implications this decision has for our community. The truth is that the consequences are unclear, but that uncertainty will expose Jewish schools and other employers who hold traditional Jewish ideals to costly and burdensome litigation. American Jews would have been better served if the Supreme Court had declined to reinterpret Title VII and left the role of legislating new civil-rights protections to Congress.
In the case Bostock v. Clayton County Georgia, the Supreme Court determined that Title VII’s prohibition against employment discrimination “because of sex” encompassed discrimination against LGBT individuals. The court reached this conclusion by reading the word “sex” hyper-literally. It stated that, because homosexuality and transgender status relate to one’s sex, discrimination based on those attributes is indirectly a form of sex-based discrimination.
The dissent argued that the court should look to the “ordinary” or “public” meaning of the operative phrase. What would an ordinary American, reading the statute when it was passed, believe it to mean? According to the dissent, given such a natural reading, the law only prohibits discrimination based on an employee’s status as a male or female. The court rejected this argument. It considered it irrelevant that ordinary citizens, members of Congress and the first 30 judges to interpret the statute did not anticipate this interpretation—so long as it was justified by the literal meaning of the words.
Both the majority and the dissent acknowledged that the holding could harm religious employers. The majority recognized the concern that its ruling “may require some employers to violate their religious convictions,” but waived those fears off as “questions for future cases.” The dissent discussed at length the negative consequences that the decision might have on religious employers.
Last August, the Jewish Coalition for Religious Liberty joined a diverse array of religious groups and submitted a friend of the court brief highlighting these potential dangers. Now that the court has decided (wrongly in our opinion) to expand Title VII, it is important to revisit those concerns. By usurping the role of the legislature, which could have incorporated explicit religious protections into any new anti-discrimination law, the Supreme Court made it more likely that Jewish employers would have to suffer through costly and arduous litigation in order to find out the implications of its ruling.
Potential lawsuits involving employment at Jewish schools exemplify the potential harms. May a Jewish school require teachers to publicly model Judaism? Most Orthodox schools believe that homosexual conduct and sex-reassignment surgery are religiously forbidden. Can a school fire a gay or transgender employee on the basis that he or she is not presenting a proper religious role model for students?
Furthermore, harassment constitutes impermissible discrimination under Title VII. Would a gay teacher at a Jewish school who consistently hears rabbis teaching the traditional Jewish views regarding homosexuality be able to successfully sue the school for discrimination?
The answer to these questions is unknown, but it will ultimately be determined through a series of lawsuits that impose enormous costs on religious schools.
When religious organizations, including schools, hire and fire “ministers,” they are exempt from government regulations under a First Amendment doctrine known as the “ministerial exception.” Unfortunately, it is unclear which teachers qualify as ministers. A rabbi who teaches Talmud probably would, but what about a math teacher, a school guidance counselor or a gym teacher? The Supreme Court will decide a case that may clarify the issue soon, but it remains unknown what it will decide or how far the decision will reach.
Title VII contains a religious exemption, but because Congress never expected Title VII to cover LGBT individuals, it is unclear how the exemption will work in these new circumstances. Some courts have held that the exemption only protects religious employers from claims that they discriminated on the basis of religion by exclusively hiring members of their own faith. One court went as far as to hold that the exemption did not protect a church’s right to only hire male priests. Other courts have held that employers forfeit the protection if they enforce religious standards inconsistently—treating some more harshly than others. For instance, a school may not be protected if it seeks to fire a teacher who had a sex-change operation, but not a teacher who eats in dairy restaurants that lack kosher supervision.
The Religious Freedom Restoration Act may also provide religious schools with some protection because it prevents the federal government from burdening religious exercise unless it has a compelling need to do so. Unfortunately, some courts appear to treat nondiscrimination laws, such as Title VII, as automatically meeting that requirement.
This highlights one reason why the Supreme Court should have affirmed the traditional understanding of Title VII. If Congress, instead of the court, had extended employment protection to LGBT individuals, it could have provided more certainty and greater protection for religious employers. Prior to the Bostock decision, 21 states and Washington, D.C., had enacted non-discrimination statutes covering LGBT individuals. All of those statutes contain protections for religious employers that are tailored to conflicts between LGBT protections and the rights of religious employers. Congress was considering extending such protections, and the proposals that were most likely to become law also included targeted religious protections. By short-circuiting the legislative process and shoehorning LGBT protection into Title VII, the court created the maximum uncertainty and risk for religious employers.
The reverberations of this decision will extend beyond the employment context. More than 100 federal statutes prohibit discrimination based on sex. If courts interpret those statutes, which contain similar language, in the same manner as Title VII, numerous other conflicts will arise. Jewish doctors may be required to perform gender-reassignment surgery. Religious colleges may be prohibited from separating dorms based on biological sex. Communal pools in religious neighborhoods may be prohibited from having separate locker rooms or bathrooms based on biological sex. There are many foreseeable issues, and probably even more that are as of yet unimagined.
The Bostock decision should be distressing to religious employers—not necessarily because it will ultimately result in disastrous legal outcomes, but because it will lead to increased uncertainty and burdensome litigation. For that reason, American Jews should be wary of the Supreme Court’s decision to interpret title VII in a novel and unanticipated manner, even if they broadly support the policy results.
Howard Slugh is the general counsel of the Jewish Coalition for Religious Liberty.
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