The U.S. Supreme Court just issued two important opinions addressing workplace discrimination. Those rulings narrow the difference between the federal and California employment discrimination statutes.
In a landmark decision, the Supreme Court extended protection from discrimination under federal law to LGBTQ employees that California law has long provided. In another case, the court expanded religious employers’ protection from federal discrimination lawsuits, immunity California law long has provided even more broadly.
LGBTQ discrimination
Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination “on the basis of . . . sex,” among other classifications. The Act does not separately prohibit discrimination based on sexual orientation, gender identity, or gender expression.
California’s Fair Employment and Housing Act (“FEHA”), by contrast, expressly prohibits employment discrimination “because of . . . gender, gender identity, [and] gender expression.” “‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”
In Bostock v Clayton County, the Supreme Court ruled 6-3 that an employer violates Title VII when it fires an employee because the individual is gay or transgender. Writing for the majority, Justice Neil Gorsuch explained “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The majority said it was irrelevant that when the law was enacted 56 years ago few Americans would have expected a ban on discrimination on the basis of “sex” to cover gay and transgender people. The court was bound to enforce the “starkly broad” terms of the law as written, said Justice Gorsuch, even where it resulted in unanticipated applications of those terms.
Justice Samuel Alito, joined by Justice Clarence Thomas, dissented. Justice Alito accused the majority of rewriting Title VII in the guise of interpreting it. It mattered to the dissenters that “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”
The court’s ruling effectively extended workplace protections to gay and transgender individuals in much of the rest of the country that California has had in place for years.
Religious Employers
In Our Lady of Guadalupe School v. Morrissey-Berru, Justice Alito wrote for a 7-2 majority that a previously recognized “ministerial exception” rooted in the religious clauses of the First Amendment of the U.S. Constitution barred employment discrimination claims brought by two elementary school teachers at Roman Catholic schools in Los Angeles, even where those teachers were not formally ministers. One teacher’s claim was based on the Age Discrimination in Employment Act. The other teacher’s claim was based on the Americans with Disabilities Act.
The court concluded that the narrow exceptions in Title VII and the ADA that allow “religious employers to give preference to members of a particular faith in employing individuals to do work connected with their activities” do not sufficiently accommodate the First Amendment interests of religious schools.
“When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith,” Justice Alito wrote, “judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” As Justice Thomas noted in his concurring opinion, the ministerial exception extends to the employment decisions of religious employers with respect to ministers and laypeople alike to the extent those employees “are entrusted with carrying out the religious mission of the organization.”
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, angrily dissented, objecting that the judge-made ministerial exception to federal employment discrimination laws should not permit religious entities “to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”
And yet Justice Alito’s ruling did not go as far in protecting religious employers from employment discrimination claims as California law does. With limited exceptions, California’s FEHA categorically excludes from its definition of a covered “employer” subject to the act any “religious association or corporation not organized for private profit.” It precludes discrimination claims by any employee, not just those charged with carrying out the employer’s religious mission. The high court’s ruling narrowed the gap between federal and California law in the scope of that immunity.
Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw
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