Thou Art Fired: A Conduct View of Title VII's Religious Employer Exemption
43 Pages Posted: 2 Nov 2018 Last revised: 1 Dec 2018
Date Written: October 5, 2018
With federal circuit courts beginning to recognize that Title VII prohibits employment discrimination on the basis of sexual orientation—most recently in Hively v. Ivy Tech and Zarda v. Altitude Express—a new question arises in the unfolding conflict between religious liberty and LGBT rights: to what extent will Title VII’s longstanding exemption for religious employers permit such organizations to discriminate against LGBT employees for religious reasons? Courts have flagged this question but not had occasion to answer it—yet. And because the text of the exemption is somewhat ambiguous, the answer they might give is far from obvious.
This article addresses the issue, first, by drawing out the possible approaches to the religious exemption and framing them into three distinct positions: what this article calls the Coreligionist View, the Broad View, and the Religious Conduct View. After describing the contours of each approach, the article proceeds to defend the Religious Conduct View, which has the advantage of occupying a middle position between the more polarized alternatives. Although ignored by other commentators, the Religious Conduct View turns out to be better supported by the text of Title VII, more consistent with the current caselaw, and further bolstered by practical considerations. Finally, this article examines the potential real-world effects of each treatment of the religious exemption—especially the Religious Conduct View—by running two hypothetical scenarios of religiously-motivated LGBT employment discrimination through the framework.
Keywords: Title VII, Religious Liberty, LGBT Rights, Sexual Orientation Discrimination, Free Exercise, Employment Discrimination, Religious Exemptions, Statutory Interpretation, Hively, Zarda
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