Bathroom access has become the buzz topic for gender-identity based discrimination claims as publicized and debated in popular media. This nationwide debate has featured the famous Virginia case of Gavin Grimm, see G.G. ex rel. v. Gloucester County School Board, 132 F. Supp. 3d 736 (E.D. Va. 2015). Beyond bathrooms, another line of cases argued for the viability of employment-based gender identity discrimination claims. These claims, made under Title VII of the 1964 Civil Rights Act, led to the landmark Supreme Court decision in Bostock v. Clayton City, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020). Bostock prohibited discrimination based on gender identity and on sexual orientation under Title VII. Importantly, the Bostock opinion found that such discriminatory claims for gender identity and sexual orientation were integrated into Title VII’s language preventing discrimination in employment based on sex. As a result of Bostock, the Equal Employment Opportunity Commission (“EEOC”) may now investigate charges of gender identity and sexual orientation discrimination.
Notably, the Supreme Court, in an effort to balance rights and cautious of First Amendment religious liberty concerns, highlighted in Bostock that “this Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.'” See Bostock at 1754 (citing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012)). Therefore, if you are a religiously based employer, a church, a synagogue, a Hindu temple, or even a religiously based institution such as a religiously affiliated school, remember that most of these new employment regulations against discrimination based on gender identity and sexual orientation will not apply to you. Under Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020), the Supreme Court strengthened what is known as the “ministerial exception.” This exception explains that the constitutional protection afforded under the First Amendment Establishment Clause allows churches and their closely affiliated institutions, such as religiously based schools, to maintain control over who they hire and fire as “ministers.” This is the case even if those individuals do not hold the job title of “minister” or even if they possess less religious training than the typical “minister.” This...
