Bending Bostock: Bibles, Burdens, Bisexuals, Blindness, Blouses, Bathrooms, and Bears; Oh My!
On October 31, the Honorable Reed O’Connor, United States District Judge for the Northern District of Texas, issued a seventy-page Opinion and Order in the case of Bear Creek Bible Church & Braidwood Management, Inc. v. EEOC, et al. In addition to providing great opportunities for corny alliterative commentary, this decision provides a survey of the various legal issues surrounding the friction between religious liberties, workplace policies, and employment discrimination laws.
The Bear Creek Bible Church decision serves as a sort of handbook to the various statutes and constitutional doctrines at issue in the ongoing controversies between employers and LGBTQ+ discrimination laws. These issues include religious defenses, dress-codes, codes of conduct, and bathrooms, all of which are addressed in this article.
A Bostock Background
To understand the significance of the Bear Creek Bible Church decision, it’s important to first see the questions left unanswered by the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. In Bostock, a divided Supreme Court ruled that a provision in Title VII of the Civil Rights Act of 1964 that prohibits employment discrimination “on the basis of sex”1 applied to prohibit discrimination against LGBTQ+ employees.
While the Bostock decision was regarded by many as a sweeping expansion of Title VII, the Supreme Court was careful to explain that there were various safe harbors and defenses for religious and faith-based employers who operate on traditional convictions about sexuality, marriage, and gender. Addressing concerns that a new interpretation of Title VII might infringe upon religious liberties, the Bostock Court assured that religious employers had at least three possible avenues of legal recourse:
- Title VII’s “religious organization” exception, a provision of Title VII stating that the law does not apply to “to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”2
- The Ministerial Exception, a doctrine under the First Amendment under which religious employers are immune from many employment laws with respect to their employment of “ministers” (i.e. employees who perform important religious functions).
- The Religious Freedom Restoration Act (RFRA), a 1993 federal statute requiring that all federal laws (such as Title VII) that create burden on religion must be subjected to the highest level of judicial scrutiny.3
While the Bostock Court did not actually apply any of these three defenses in its decision, it enumerated them in response to the employers’ arguments that adopting a broader reading of “sex” under Title VII would result in burdens on religious employers. Although the Bostock decision signaled that these three defenses might be available to religious employers facing liability for LGBTQ+ discrimination, it left open how courts should apply those defenses and exemptions to religious employers.
Another set of questions that the Bostock decision left unanswered were those related to sex-segregated bathrooms, locker rooms, and dress codes. The employers in that case also raised these common workplace features as ostensible sources of Title VII liability if the Court interpreted sex discrimination to include discrimination against gender identity or transgender status. However, the Bostock Court expressly declined to address these issues in its majority decision.
The Bear Creek Bible Church decision is important because it is among the first lower court rulings to apply the various religious defenses and exemptions in a post-Bostock context, as well as to address the issues of sex-segregated restrooms and sex-specific dress codes.
A Bear Creek / Braidwood Background
The Bear Creek Bible Church case involves a lawsuit filed by two Texas employers: Bear Creek Bible Church (BCBC), a nondenominational evangelical Christian church; and Braidwood Management, Inc. (Braidwood), a conglomerate of health and pharmaceutical enterprises, each of which operates as a Christian business. Both employers operate on sincerely held religious beliefs that homosexual and non-conforming behavior is immoral and that marriage is only between one man and one woman. Both employers enforced workplace policies that prohibited employees from engaging in homosexual and gender non-conforming conduct.
The plaintiffs filed a lawsuit against the U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing Title VII, as well as the individual EEOC commissioners. In their lawsuit, the plaintiffs sought a declaration from the district court that by operating on their religious convictions and enforcing their policies and practices with respect to sexuality and gender, they were not violating Title VII. Specifically, the plaintiffs asked the district court to answer several legal questions concerning the requirements and exemptions under Title VII after Bostock. The following is an overview of the district court’s rulings with respect to each question raised in the plaintiffs’ complaint.
Whether the Religious Freedom Restoration Act compels exemptions under Title VII
In Bostock, the Supreme Court stated that “because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII's commands in appropriate cases.” In Bear Creek Bible Church, both BCBC and Braidwood sought to be exempted from Title VII’s requirements on the basis of RFRA. However, RFRA is only triggered when a federal statute or regulation imposes a burden on the religious exercise of the party claiming the RFRA defense. Therefore, before determining whether RFRA exempted either of the plaintiffs, the district court had to first determine whether either of the plaintiffs were already exempted under Title VII’s own “religious organization” exception (mentioned above). The district court determined that BCBC, as a church was exempted under the religious organization exception, therefore Title VII did not burden its religious exercise and RFRA was not invoked.
However, with respect to Braidwood, the district court found that it was not a “religious organization” under Title VII, despite the facts that Braidwood incorporated religious values into its business and that it began all staff meetings with prayer. Applying a nine-factor test for “religious organization” that examined aspects of Braidwood’s operations, including whether it operated for a profit and whether it engaged in secular business, the district court concluded that Braidwood was not a “religious organization” under Title VII. Therefore, because Braidwood was subject to Title VII’s requirements, RFRA was invoked.
Applying RFRA with respect to Braidwood, the district court ruled that Title VII imposed a substantial burden on Braidwood’s religious exercise in conducting its business according to its beliefs. The district court based this conclusion on the fact that employers like Braidwood that have sincerely-held religious beliefs about marriage, gender, and sexuality “are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.”
Under RFRA, once a party shows that a federal law substantially burdens their religion, the federal government must then show that the burden is justified by a compelling interest and that it has chosen the least restrictive means of advancing that interest. Although the EEOC argued that the government has a compelling interest in eradicating workplace discrimination, the district court in Bear Creek Bible Church ruled that this asserted interest did not suffice to survive RFRA.
Citing to the U.S. Supreme Court’s recent decision in Fulton v. City of Philadelphia, the district court ruled that the government could not rely upon “broadly formulated interests” but rather had to show “a compelling interest in denying employers like Braidwood a religious exemption.” The district court further found that even if the government could assert a compelling interest, “forcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer's views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest.”
Therefore, the district court ruled that RFRA protected Braidwood’s right to operate according to its religious beliefs.
Whether the Free-Exercise Clause of the First Amendment compels exemptions to Title VII
The district court also ruled that the First Amendment’s Free Exercise Clause protected BCBC and Braidwood from liability under Title VII for operating on their religious beliefs. To appreciate this ruling, it’s important to understand the differences between RFRA and the Free Exercise Clause. RFRA applies only to federal laws, but will apply to remedy all burdens on religion, even if those burdens result from neutral, generally applicable laws. The First Amendment, however, applies to both state and federal laws, but it does not protect against burdens resulting from generally applicable laws that are neutral towards religion. As an illustration, a state law requiring functional headlights for vehicles on highways is neutral and generally applicable. Therefore, even though such a law might incidentally burden the religion of groups like the Amish, such a law would not likely violate the First Amendment. However, if it was a federal headlight requirement, that law might violate RFRA because RFRA operates without respect to a law’s neutrality or general applicability.
When a law challenged under the Free Exercise Clause is determined not to be a neutral, generally applicable law, it triggers the same analysis as that under RFRA: the government must show a compelling interest and that the law at issue is the least restrictive means for achieving that interest.
In Bear Creek Bible Church, the district court found that Title VII, although neutral towards religion, was not a generally applicable law because it contains several secular exemptions to its non-discrimination requirements. For example, Title VII does not even apply to employers with less than 15 employees, it expressly permits employers to discriminate against employees on the basis of their affiliation with Communist organizations, and it authorizes employers on or near Indian reservations to discriminate on the basis of race and national origin. Therefore, the district court found that Title VII was not a neutral, generally applicable law, and that its burdens on religion therefore triggered the First Amendment’s protections.
Making this conclusion, the district court then applied the same analysis it had performed with respect to RFRA, finding that the government could not justify Title VII’s burdens on religion because Title VII’s anti-discrimination provisions were not narrowly tailored to a compelling government interest. Therefore, the district court ruled that the Free Exercise Clause of the First Amendment protected Braidwood’s right to operate its business according to its religious beliefs.
Whether the First Amendment right of expressive association compels exemptions to Title VII
In addition to protecting religious exercise, the First Amendment has also been interpreted to protect the right of expressive association, namely the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This First Amendment liberty also includes a freedom not to associate. Similar to RFRA and the Free Exercise Clause, the First Amendment requires that any government burdens on a party’s expressive association can be justified only by a law that is narrowly tailored to a compelling governmental interest.
In Bear Creek Bible Church, the plaintiffs argued that Title VII’s requirement that they hire, retain, and accommodate LGBTQ+ employees violated their First Amendment right to expressive association because it forced them to associate with persons whose conduct opposed their own religious views. Having already twice found that Title VII was not narrowly tailored to a compelling interest, the main question before the district court on this claim was whether the plaintiffs’ religious opposition to homosexual and gender non-conforming conduct constituted expressive association.
The court concluded that the employers’ decisions not to hire or employ individuals who engage in such conduct was indeed expressive association. Therefore, the district court ruled that the First Amendment right to expressive association protected a religious employer’s right not to hire or employ persons engaged in homosexual conduct.
Whether Title VII permits sex-neutral codes of conduct so long as each biological sex is subjected to the same standard
The final set of questions that the district court reached all pertained to the scope of Title VII after Bostock and what precise standard the Bostock Court established for sex discrimination. The plaintiff employers argued that Title VII only prohibits an employer from showing “favoritism” towards either men or women. The EEOC argued that Title VII not only forbad favoritism, but that it required employers to act with “blindness” to a person's sex. Analyzing whether the appropriate standard under Bostock was “favoritism” or “blindness,” the district court concluded that Bostock requires employers to satisfy both requirements.
Ruling that the post-Bostock standard for sex discrimination Title VII was “favoritism, plus blindness,” the district court then addressed five different workplace policies to determine whether each of them violated Title VII.
1. Policies against bisexual conduct
The plaintiff employers argued that employers are permitted to discriminate against bisexuals because Bostock only addresses homosexuality and transgenderism. But the district court ruled that while a workplace policy against bisexual conduct would pass the “favoritism” requirement (i.e., treating men and women the same), it would not pass the “blindness” requirement since such a policy would inherently target an employee’s sex vis-à-vis the sex of at least some of their putative sexual partners.
2. Policies prohibiting certain sexual activities
The plaintiff employers argued that Title VII permits employers to regulate the sexual conduct of their employees. For example, the plaintiffs had workplace policies requiring their employees to refrain from engaging in certain sexual activities, including sodomy, premarital sex, adultery, and any other kind of sexual activity occurring outside the context of a marriage between a man and a woman.
The district court ruled that such a policy would not violate Title VII because the law does not protect sexual conduct but rather protects employees from being treated differently based on their biological sex. So long as such policies apply evenly to heterosexual and homosexual activity, the court reasoned, policies that impose a sexual ethic do not violate Title VII.
3. Sex-specific dress codes.
The plaintiff employers also had policies requiring a sex-specific employee dress code. For example, under Braidwood’s dress-code policy, men are forbidden to wear earrings, but women may; men must wear ties, but women are not permitted to wear ties; and women can wear skirts, blouses, shoes with heels, and fingernail polish, while men are forbidden to wear any of these items.
The EEOC argued that Title VII does not allow employers to prohibit an employee from dressing or presenting in accordance with their professed gender identity, because to do so would be sex discrimination. But the district court rejected this argument, reasoning that a dress-code policy satisfies both the “favoritism” and “blindness” requirements. For example, a biological male who wishes to dress as a female would be placed in the same position as a biological female who wishes to dress as a male. In the same way, a biological man who wishes to pierce his ears would be in the same position as a biological female who wishes to wear a tie. Therefore, the district court ruled that sex-specific dress codes do not violate Title VII.
4. Policies prohibiting hormone treatments and genital surgery
The plaintiff employers also asked the court to declare whether they can prohibit their employees from getting genital modification surgery and from using hormone treatments for gender dysphoria. The district court ruled that such a policy violated Title VII because it explicitly targeted transgendered individuals.
5. Sex-specific workplace bathrooms
The final issue the district court addressed was whether employers may prohibit employees from using a restroom designated for the opposite biological sex. The EEOC argued that Title VII required employers to accommodate transgendered employees by allowing them to use the restroom corresponding to their gender identity. However, the district court rejected this argument and noted that sex-specific workplace restrooms treated both sexes equally and cited to Supreme Court precedent recognizing the need for privacy in close quarters, bathrooms, and locker rooms to protect individuals with anatomical differences—differences based on biological sex. While the district court did not address the “blindness” requirement, it nevertheless ruled that sex-specific restrooms and policies requiring employees to use the restroom corresponding to their biological sex did not violate Title VII.
A Lot to Take In
The Bear Creek Bible Church decision covers a lot of legal ground. The district court ruled on several issues that have been burning on employers’ minds since the Bostock decision in 2020, especially faith-based organizations and other religious employers. These rulings from a single district court in Texas may not be a reliable indicator of how other courts across the country will apply Title VII after Bostock or whether appellate courts will affirm such rulings. But the Bear Creek Bible Church decision is a great display of the various issues left unresolved by Bostock, what positions the EEOC is taking with respect to those issues, and what liabilities and defenses might exist for employers as they grapple with a rapidly evolving area of employment law.
1 42 U.S.C. § 2000e–2.
2 42 U.S.C. § 2000e–1(a).
3 See 42 U.S.C. § 2000bb–1.
Featured Image by Rebecca Sidebotham.
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