Judicial Fluctuations In the Land of Opportunity: Changes in Religious-Based Employer Discretion Post-Bostock v. Clayton County

Though it’s been over two years since the Supreme Court’s landmark decision in Bostock v. Clayton County that granted employment discrimination covered under Title VII of the Civil Rights of 1964 to include sexual orientation, a ruling which divided the originalist camp of constitutional interpretation, challengers to Neil Gorsuch’s controversial majority opinion have begun to test the waters of exemption. Title VII provides a religious exemption for “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” 42 U.S.C. § 2000e-1(a). Despite the presumed clarity of Title VII’s religious accommodation, the standards used by courts to assess an employer as religious have varied over time. This presents a crucial question of how a court should define a place of employment as religious. 

To understand the gravity of the Bostock outcome for organizations seeking to qualify for religious exemption under Title VII’s employment statute on anti-discrimination, we should first look to a previous standard used pre-Bostock that limited the organizations protected under religious exemption from Title VII with a multi-factor test. 

Though differing from Bostock in that the terminated employee argued her employer, a Jewish community center, discriminated against her because of her evangelical Christian beliefs rather than her sexual orientation, LeBoon v. Lancaster Jewish Community Center Association set a multifactor standard for determining whether an organization qualified as religious for exemption from Title VII under §702. In affirming the decision of the lower court, the Third Circuit Court of Appeals in LeBoon applied a multi-factor standard previously elaborated in EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980). This standard includes: (1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists (LeBoon v. Lancaster Jewish Community Center Association). 

Applying this test to the Lancaster Jewish Community Center (LJCC), the court ruled that the religious exemption covers the LJCC. LeBoon argued that the LJCC should not fall under the religious exemption since it lacked administrative and financial ties to a synagogue in addition to serving a primarily cultural purpose instead of a religious one. Despite the LJCC not being a place of worship or consecrated grounds, the court reasoned that the overall structure and purpose of the LJCC served a primarily religious function. Though not solely governed by rabbis, the LJCC’s advisory board consisted of three rabbis from different synagogues who served as non-voting members of its board of trustees. Additionally, local synagogues and the Lancaster Jewish Federation fundraised for the LJCC. Having satisfied all of the elements of the multifactor test for religious exemption under Title VII as articulated in EEOC v. Mississippi College, the Third Circuit Court of Appeals granted summary judgment to the LJCC since there was no dispute of material fact and the issue of law indicated that the LJCC is protected under the religious exemption of Title VII from discrimination based upon religious beliefs. However, this case was decided in 2007 and the landmark decision in Bostock v. Clayton County complicated this situation by overruling this decision and making the multi-factor standard used irrelevant. 

As a direct result of the Supreme Court decision in Bostock which ruled sexual orientation falls within the meaning of sex and therefore within Title VII’s anti-discrimination law, a variety of religious-affiliated organizations—including churches and Christian-owned businesses—sought exemption from the consequences of the court’s decision. In particular, Bear Creek Church, a nondenominational Christan church, and Briarwood Management Inc., owned by a Chrisitan employer, filed suit in the U.S. District Court in the Northern District of Texas in 2021. Bear Creek Church as a directly religious entity qualifies for exemption from Title VII under §702 as articulated by Jude O’Connor. 

The more uncertain, yet significant outcome in this case is whether a for-profit business with no direct religious purpose qualifies for exemption from Title VII’s anti-discrimination laws. Despite his businesses not serving a primarily religious purpose, Briarwood owner Dr. Steven Hotze states that he operates his businesses as Christian entities. His three businesses are entitled Hotze Health & Wellness Center, Hotze Vitamins, and Physicians Preference Pharmacy International LLC, which function as health-focused entities and are not apparently religiously affiliated. Briarwood’s role in this suit seems to lack standing as it would surely have not passed the multi-factor test used pre-Bostock for religious exemption under §702, based upon the first element of being a for-profit organization. However, Judge O’Connor distinguishes between the Church-Type Employers Class and the Religious Business-Type Employers Class. While members of the Church-Type Employers Class may receive exemption from Title VII under §702, members of the Religious Business-Type Employers Class may seek exemption through the Free Exercise Clause of the First Amendment to employ in observance of their religious beliefs. Additionally, the Court stated that the Equal Employment Opportunities Commission (EEOC) failed to state how granting exemptions for the Religious Business-Type Employers class may harm their interests in preventing discrimination. Further, the Court expresses that the EEOC possesses no compelling interest in forcing Religious Business-Type Employers to keep employees engaging in behavior contrary to the employers' religious beliefs. 

The decision in Bear Creek Church & Briarwood Management, Inc v. EEOC, increases the types of organizations that may assert claims of exemption from Title VII anti-discrimination law for serving a primarily and directly-linked religious purpose. This raises a policy issue of whether individuals who identify as LGBTQ will suffer in seeking employment opportunities if any organization must merely assert an owner’s beliefs in order to qualify from exemption? In attempting to harmonize religious exemption with anti-discirmination practices based upon sex, which now includes sexual orientation, courts must standardize what qualifies as a religious organization and what sorts of practices are discriminatory aganist protected individuals based upon an immutable characteristic. 

Alexandra Herrera is a senior at Brown University, concentrating in Sociology with a focus in law and public policy. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at alexandra_herrera@brown.edu.