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Employers should be able to discriminate against LGBTQ workers based on religious beliefs, suit asserts

By Pamela Wolf, J.D.

The U.S. Pastor Council and Hotze Health & Wellness Center have teamed up to file a lawsuit against the EEOC and its Commissioners, as well as Attorney General Jeff Sessions (all of whom are charged with enforcing Title VII), challenging the EEOC’s interpretation of Title VII to make employment discrimination based on sexual orientation or gender identity unlawful, without permitting any exemptions or accommodations for churches or corporations that oppose homosexual or transgender behavior on religious grounds.

The plaintiffs are looking for an injunction that would bar the federal government from enforcing Title VII’s prohibitions against employment discrimination based on sexual orientation and gender identity against employers that object to homosexuality and transgender behavior on religious grounds. Said differently, they are looking for permission to discriminate against LGBTQ+ applicants and employees due to their own religious beliefs.

The plaintiffs raise claims under the U.S. Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The complaint was filed on October 6, the same day the Council sued the City of Austin, Texas, under a similar theory. The Council includes about 1,000 member churches, including six in Fort Worth, Texas, where the lawsuit was filed in federal court. Hotze Health & Wellness Center is a for-profit business incorporated under the laws of Texas.

The complaint also challenges the EEOC’s “demands” that employers recognize same-sex marriage on the same terms as opposite-sex marriage, and permit employees “into restrooms that correspond to the ‘gender identity’ that they assert—regardless of the individual’s biological sex, regardless of whether the individual has had a sex-change operation, and regardless of any objections or privacy concerns that might be raised by other employees.”

Ministerial exception not broad enough. The plaintiffs point to the “ministerial exception” in the First Amendment, which categorically exempts a religious group’s selection of its ministers from the reach of antidiscrimination law. While the ministerial exemption protects the Catholic church from being forced to hire women as priests, notwithstanding the text of Title VII, and protects other churches from being forced to hire practicing homosexuals as clergy, it offers no help to Christian-owned businesses that oppose homosexuality and transgender behavior on religious grounds. The exemption also does not shield churches that require non-ministerial employees, such as secretaries, to refrain from homosexual behavior.

RFRA and First Amendment limitations. The EEOC refuses to acknowledge that the RFRA and the First Amendment limit that agency’s ability to enforce Title VII against employers who object to homosexual and transgender behavior on religious grounds, according to the complaint. The EEOC “readily brings lawsuits against Christian businesses that oppose these behaviors without regard to their rights under the RFRA and the First Amendment.” There are other policies, regulations, and executive orders adopted by the federal government, the complaint suggests, which attempt to prohibit discrimination on account of sexual orientation and gender identity without any exceptions or allowances for religious institutions.

Relief sought. The complaint seeks a declaratory judgment that EEOC’s interpretation of Title VII to make employment discrimination based on sexual orientation or gender identity unlawful, without permitting any exemptions or accommodations for churches or corporations that oppose homosexual or transgender behavior on religious grounds, violates the RFRA and the First Amendment. The plaintiffs are also seeking an injunction barring the federal government “from enforcing antidiscrimination policies of this sort against any employer that objects to homosexual or transgender behavior on religious grounds.”