In workplace training programs, I will at times encourage participants to consider the case study – or a situation they are personally confronting – through a different perspective.  You may not be too bothered by a situation in which a woman is touching a man while speaking to him, but how would you assess the situation if the roles were reversed and it was the man doing the touching?  Or perhaps you have assessed a certain pattern of behaviors to be excusable when directed at someone of a particular ethnicity.  Would you feel the same if those behaviors were directed at someone of a particular race?  Would it matter with which racial group the targeted person identified?

I keep reflecting on that exercise in the context of the Supreme Court’s recent decision in 303 Creative LLC et al. v. Elenis et al (June 30, 2023) and wonder whether the Supreme Court meant to signal that sexual orientation is actually not protected to the same degree as religion, race, color, and national origin.  Reflecting on the 303 Creative decision in the context of federal court decisions over the past three years, I think there is ample reason to conclude that the Court did mean to signal exactly that, and sexual orientation and gender identity enjoy a lesser degree of protection than other characteristics under federal law.

Prioritizing Speech Over LGBTQ+ Interests

In 303 Creative, the Court held that a graphic designer who was looking to get into the wedding website design business only for marriages between a man and a woman could not be required to design websites for other types of marriages.  The Court’s analysis was grounded in the First Amendment, and a conclusion that compelling the graphic designer to design web sites for weddings she does not support on moral and religious grounds would be an impermissible form of compelled speech.  The graphic designer had stipulated that she was not entirely refusing to provide services to LQBTQ+ clients and organizations, and therefore the Court reasoned that she was refusing to serve customers based on expressive speech, and not their protected characteristics.  The Court further stated, and repeated throughout its opinion, that First Amendment protections extend to speakers whose motives may be misinformed or offensive to others, and to messages that others may find “deeply ‘misguided’” and likely to cause “’anguish’ or ‘incalculable grief.’”

But would the Court have reached the same holding if the graphic designer had stipulated that she would provide services to Black clients and organizations, provided they did not include any “Black Lives Matter” statements?  What if the graphic designer said that she firmly believes all lives matter, that we are all created in the image of G-d, and it therefore is contrary to her religion to design a web site that prioritizes certain lives over others?

What the Supreme Court Has Said About LGBTQ+ Protections Under Title VII

In June 2020, right at the height of the pandemic and the Black Lives Matter protests, the Supreme Court issued a landmark six to three decision in Bostock v. Clayton County, Georgia (June 15, 2020).  Perhaps lost in the headlines of more immediate concerns, the Court for the first time held that the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964 includes a prohibition against discrimination based on sexual orientation, gender identity, and transgender status.  Resolving a trio of cases, each involving the termination of a long-time employee allegedly based on the employee’s sexual orientation or transgender status, the Court held that the impacted employees had stated a viable claim that they each had been terminated because of their sex and were therefore protected by Title VII.

Responding to points raised by the dissent, that “sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today,” the majority of the Court said it was not prejudging that issue, which was not then before it.  The Court further said it was not addressing how doctrines protecting religious liberty, including First Amendment free exercise protections, interact with Title VII.  It left those as questions to be decided another day, in a case in which they were squarely presented.

Open Questions

The scope and reach of the Bostock decision and, with it, the scope of federal law protections for individuals based on sexual orientation and gender identity, therefore remain open questions.  The most narrow construction of Bostock is that an individual cannot be fired simply because of that person’s sexual orientation or gender identity.  That much employers can presume with confidence.

A year after the Supreme Court’s decision, the EEOC issued guidance that Title VII, consistent with Bostock, stands for more than that, specifically that it:

  • Forbids discrimination in any aspect of employment, including pay, job assignments, promotions, training, benefits and other terms or conditions of employment;
  • Forbids harassment based on sexual orientation or gender identity, including offensive or derogatory remarks, and intentional and repeated use of the wrong name and pronouns for a transgender employee;
  • Forbids discrimination or segregation in assignments based on customer preference for an individual of a different sexual orientation or gender identity;
  • Forbids restrictions on a transgender person dressing or presenting consistent with that person’s identity; and
  • Forbids employers from denying equal access to the bathroom, locker room or shower that corresponds to an employee’s gender identity.

Two federal district courts, in Tennessee and Texas, have struck down the EEOC’s guidance as going beyond the scope of the law, specifically with regard to employee dress, bathroom use, pronoun use and customer preferences.  Further, the 11th Circuit Court of Appeals cited the Bostock majority’s disclaimer in a December 2022 decision (Adams v. Sch. Bd. of St. Johns Cnty.) to hold that the Supreme Court’s decision did not preclude a school board from enforcing a policy of assigning student bathrooms based on sex at birth.

How This Ties Back to 303 Creative

In this context, the Court’s most recent decision in 303 Creative, although not an employment law case, has ominous implications for those who were looking for a broad construction of the Bostock decision.  Fundamentally, the question that employers periodically need to wrestle with is whether it is permissible to discriminate based on sexual orientation or gender identity in the name of accommodating an employee’s religious beliefs or practices.  303 Creative suggests that the answer may be a qualified “yes,” that an employee’s outright refusal, on religious grounds, to work with an individual based on that individual’s sexual orientation or gender identity need not be accommodated, but that employers may need to make exceptions to other policies promoting equal treatment of individuals based on sexual orientation or gender identity.  Employers facing these issues in their own workplace should consult with legal counsel to understand the evolving scope of the federal law protections, and also consider whether state and local laws that protect individuals based on sexual orientation and gender identity impact the legal analysis.

By Tracey I. Levy


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