United States: On A Collision Course? How Religious Entities Should Address The Legal Expansions Of Gay Marriage And Gender Identity Protections

By now you are no doubt aware that the U.S. Supreme Court's 2014 decision in Obergefell v. Hodges legalized same-sex marriage across the country. The decision has caused religious institutions and schools to ask about their rights and obligations when it comes to making religious-based decisions about employees that might conflict with expanding gay and transgender legal rights. And, as in many areas of law, the answer to this complicated question is: "it depends." Hold on to your seats as we examine a small portion of the law and give you a flavor of the complications facing your institution today.

Legal Impact Of Obergefell On Religious Institutions And Schools
There's at least one easy answer to begin the analysis: Obergefell has no direct impact on religious institutions and schools. It does not require a religious institution or school to do or to refrain from doing anything. The Supreme Court decision only directly impacts the government. In that regard, Obergefell requires that the government not pass or enforce laws that impinge on the rights of same-sex couples to marry. 

Indirect Impact Of Obergefell On Religious Institutions And Schools
However, there certainly is an indirect impact on religious institutions and schools by both Obergefell and other legal expansions, not to mention widespread societal changes, relating to both same-sex relationships and gender identity. Religious institutions and schools will be faced with more situations in which gay or transgender employees, parents, and students will seek employment with and/or admission to their institutions. 

Other gay or transgender individuals who may already be a part of the community may decide to disclose their sexual identities and seek accommodations or engage in behaviors that may violate the institution's religious beliefs. In addition, gay and transgender advocacy groups may seek to rent or use the institution's facilities for activities that are inconsistent with the institution's religious principles.

Do Religious Institutions Have The Right To Say No?
The big question, then, is whether you can legally say "no" when any of these issues land on your desk. Unfortunately, there is no easy answer to this question. The answer depends on "how religious" your institution is, where your institution is located, and the nature of the decision you want to make. This is because there are layers of federal, state, and local laws that must be analyzed to determine your institution's rights.   

When looking at the employment relationship, there are several federal laws that require employers with 15 (and in some cases 20) employees not to discriminate in employment decisions. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, sex, pregnancy, national origin, and religion. Other laws prohibit disability and age discrimination.  

Over the years, the term "sex" in Title VII has been interpreted by the courts to include "gender," which recent cases have expanded to mean "gender identity." Moreover, "sex" also has been broadly interpreted by courts and the EEOC to include any type of bias based on sex (including same sex). Thus, the government and private plaintiffs have sued employers, including religious entities, claiming that the refusal to hire or a decision to terminate based on an applicant's or employee's gender identity or sexual orientation violates Title VII.

Religious institutions and schools are certainly covered by and must comply with the nondiscrimination provisions of Title VII. There's some good news for religious employers, however. In recognition of the religious freedom rights under the First Amendment to the United States Constitution, Title VII contains exemptions to the nondiscrimination provisions which permit religious corporations, societies, and educational institutions to prefer to employ persons of the institution's own religion for the carrying on of its functions.   

Another provision permits a school to prefer to employ persons of its own religion if the school is owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society. These exemptions, unfortunately, are not interpreted by the courts as broadly as you may believe. In addition, unless the institution is a church, synagogue, or other traditionally recognized religious institution, it must be "religious enough" to qualify for even these limited exemptions. 

What Religious Institutions Are "Religious Enough" To Qualify For The Title VII Exemptions?
Certainly churches, synagogues, and other traditional religious institutions meet the test as being "religious enough" to qualify for the Title VII exemptions. The institutions at greatest risk for legal exposure are those schools that are affiliated with a religious institution, or those that are stand-alone schools with a religious function. 

For these latter institutions, courts require an analysis of numerous factors that bear on the institution's establishment, religious purpose, relationship with or funding from religious institutions, governance by members of the affiliated religious institution, and religiosity in its daily operations (including devotionals, prayer, and infusion of religion into non-religious subjects), among others.

If the institution is deemed "religious enough," the institution may require that all persons hired and employed by the institution be of the institution's religion and follow its religious principles. It can even require the employee to sign an agreement to abide by the institution's beliefs and lifestyle commitments.

What if the individual does not commit to or violates any of these principles? One would think that the institution could terminate the employee on that basis. Unfortunately, this is another area where the law is somewhat confusing and not as broad as employers would hope.

Limitations On Religious Institutions
Another recent Supreme Court decision, Hosanna Tabor Evangelical Lutheran School v. EEOC, is instructive in this area. In this 2012 decision, the Court made clear that, under the First Amendment to the U.S. Constitution, churches and religious schools must be free to make employment decisions regarding their "ministers." However, the Court also made very clear that even religious employers may be limited in their right to make decisions not to hire or to terminate an employee based on religion for their non-ministerial employees if those decisions collide with the employee's or applicant's other nondiscrimination rights.

For example, if it would violate the institution's religious principles for a female employee to have sexual relations out of wedlock, it would seem that the institution could terminate a non-married, pregnant employee based on the employee's violation of the institution's religious principles. However, if the employee sued the institution based on pregnancy discrimination (a different protected status), a court would probably not dismiss the case right away. 

Instead, the institution would have to assert a defense to the claim that the institution terminated the employee's employment based on a violation of the institution's religious tenets and that it was entitled to do so because the employee was a functional minister of the institution. This was the defense recognized in the Hosanna case. 

Moreover, the institution would have to prove that the employee qualified as a "minister" by producing evidence of the employee's education, training, and the carrying out of religious functions for the institution. Although the institution would likely be able to provide the appropriate evidence for a religious studies teacher, it may be very difficult to prove that a janitor or bus driver is a minister of the institution. In such a case, the institution may be faced with substantial damages, not to mention the attorneys' fees expended for defending the case.

This same analysis would apply if a religious institution or school terminated an employee (or failed to hire an applicant) on the basis that the individual's status as a gay or transgendered person is inconsistent with the institution's religious principles. The individual could claim that the institution is violating its nondiscrimination rights based on gender under Title VII. 

For these reasons, due to the expanded laws in these areas, you would be well-advised to obtain advice on how to both strengthen your position and to analyze the potential separation of individuals where the decision may collide with other nondiscrimination rights of the individual.

State And Local Laws
The above synopsis is focused only on some of the federal employment laws that apply to your religious institution and school. To fully understand your institution's obligations under all of the various laws, however, you will also need to analyze the growing number of state and local laws (ordinances) protecting the rights of gay and transgender individuals. Many of these laws impact both employment obligations and your rights and obligations regarding the admission of students who may be gay or transgendered (under the "public accommodation" provisions of state/local laws).

Recommended Steps
Religious institutions and schools should work with counsel to analyze whether the institution is "religious enough" to claim the Title VII exemptions and to shore up those areas in question as quickly as possible. In addition, you should evaluate your job descriptions, contracts, policies, bylaws, articles of incorporation, facilities agreements, website, and other documents communicating both your religious character and an individual employee's religious responsibilities.

This will allow you to both assess whether an individual employee or applicant may qualify as a "minister," and to determine whether any additional steps should be put in place to solidify the ministerial exception if any of your employment or admissions decisions are challenged.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions