Three federal judges in Louisiana could soon decide if some businesses can refuse to hire gay or transgender employees following recent oral arguments in a case that seeks to challenge the landmark Supreme Court ruling — Bostock v. Clayton County.
The 2020 ruling determined that LGBTQ employees are protected from workplace discrimination under the Civil Rights Act of 1964.
The federal civil rights law bars companies from discriminating against workers based on protected traits such as their race, religion and sex. Up until Bostock, federal courts did not consider a person’s sexual orientation or gender identity as one of the protected characteristics, so bias against gay and transgender employees remained legal in 28 states without their own anti-discrimination measures. The Supreme Court’s ruling in 2020 was hailed as the biggest victory for LGBTQ rights since it legalized same-sex marriage five years earlier. But it has also triggered a legal battle from conservative religious groups, who argue that business owners cannot be forced to hire gay or transgender employees if it violates their religious beliefs.
One of those activists is Steven Hotze, a well-known Texas physician and anti-gay activist. Hotze’s healthcare company, Braidwood Management Services, sued the U.S. Equal Employment Opportunity Commission in 2021 in Texas federal court, asking a judge to shield his company and other religious businesses from liability if they oppose hiring LGBTQ employees. The Texas judge ruled in his favor, therefore protecting an unknown number of religious businesses from potential EEOC lawsuits. The EEOC appealed the decision last year.
In February, three judges from the Fifth Circuit Court of Appeals listened to oral arguments for 40 minutes in a courtroom in New Orleans. U.S. Circuit Judge Cory Wilson, one of the three Republican appointees on the panel, seemed hesitant to uphold the lower court’s decision. He suggested that it could allow any employer to escape liability as long as they claim a religious objection to working with gay or transgender people.
Public Integrity recently spoke with Sachin Pandya, a law professor at the University of Connecticut, about what this legal battle means for LGBTQ workers. Pandya specializes in workplace law and is one of several anti-discrimination experts who filed an amicus brief in Bostock v. Clayton County, arguing that gay and transgender employees are protected from discrimination under the Civil Rights Act. Pandya talked about the impact of the new civil rights protections and whether religious groups could fundamentally weaken them.
*Excerpts of this conversation have been edited for length and clarity
Q. I remember the Supreme Court’s ruling — in Bostock v. Clayton County — being described as the biggest win for LGBTQ rights since the court legalized same-sex marriage. Why do you think it’s so significant?
The reason it’s significant is that Title VII [of the Civil Rights Act of 1964] is the premier federal employment discrimination statute and it provides protection throughout the country. In contrast, some states don’t expressly protect against discrimination by employers on the basis of gay or transgender status. So if you lived in one of those states, then the employer would not technically violate the law if they fired you because you’re gay. And in some states there is no state employment discrimination statute, period. And so in those states you wouldn’t be protected either. And so the reason this is significant is because Title VII’s reach is now nationwide. Having that protection no longer depends on where you happen to live or where you happen to have been fired or not hired because you are gay or transgender.
Q. What do you think the impact of Bostock has been so far? I just looked at the EEOC’s data and it does seem like there’s been an increase — not huge — in the number of claims related to LGBTQ discrimination in 2021. And that a larger percentage of them seem to have been successful. I’m assuming that’s related to the new protections. I’m wondering if you’ve seen any evidence that gay and transgender workers are taking more legal action.
I haven’t dug as deep into that question. And so what I’m gonna say now is a little bit more in the way of conjecture. One easy-to-observe effect of Bostock is, to what extent do the lower courts explicitly cite to Bostock in opinions affirming its ruling in Title VII cases? So that’s relatively easy to observe. I think the strong assumption is that, if someone now brings a Title VII case and the other side says it doesn’t cover gay or transgender people, then the lawyer on the other side says, “Nope, sorry, you can’t make that argument anymore in light of Bostock.”
The EEOC charges you’re referring to involve a process by which individuals who believe that they’ve been subject to discrimination because they are gay or transgender file a piece of paper saying as much to the EEOC. And it’s just based on what they believe to be true as opposed to what they could actually prove. So that’s a kind of noisy measure of Bostock‘s effect. Another possibility is that employment lawyers are well versed in Bostock, but individuals may not have that on their mind. The lawyer might say, “The fact that it’s discrimination because you’re gay or transgender isn’t an obstacle, as much of an obstacle as it once was.”
Has Bostock had a significant effect? Oh, sure. How much has it changed the complaining behavior of workers and the filing behavior of lawyers is a harder question to answer.
Q. What can you tell us about the status of these new protections for LGBTQ workers? There’ve been lawsuits from religious groups and employers claiming that they’re exempt.
The next wave of litigation is really about the extent to which for-profit businesses can escape Title VII liability by arguing that they have a religious — sincere religious — motivation to discriminate against gay people. How do these for-profit businesses make this kind of argument? The Texas litigation is an example of this.
The main plaintiff in that case is an outfit called Braidwood Management. It’s a company that’s a management company for employees of three separate businesses. But the key idea here is that those three businesses are wholly owned and controlled by one person, a guy named Steven Hotze.
Their legal claim is predicated on the Religious Freedom Restoration Act, which protects people from government actions that substantially burden their religious beliefs. In a lawsuit from the EEOC, the government has the task of justifying that burden as the least restrictive means of advancing a compelling governmental interest. And so one of the key things they argued in Texas is: “We believe that you’re going to sue us and we have sincere religious beliefs that would motivate us to oppose employing gay and transgender people.” So Braidwood and the plaintiffs filed a declaratory judgment action in the federal district court in Texas, to get the court to declare what rights they have and what relief they’d be entitled to.
They asked the court to declare that Braidwood is not subject to Title VII. And the district judge in the case, Judge O’Connor, agreed with that.
Now the class action part is probably the most significant piece of this litigation. If Braidwood were bringing this only on behalf of itself, that would be one thing. But they sought and obtained from the district judge an order certifying them to represent a class of employers so that any judgment in the plaintiffs’ favor would also bind the people in the class.
So the next question is, who are the members of this class? It is all employers in the United States who, for religious reasons, oppose employing gay or transgender people. So that’s pretty broad. And so the judge right there basically barred the EEOC from suing them and winning. Now, an employer would still have to prove that they have sincere religious reasons for discriminating against gay and transgender individuals, and that an EEOC suit would count as substantial burden. But if you could prove that, then you can use the judgment in the Texas case to your benefit.
Q. What real-world impact does all this have on people who are gay or transgender? What kind of advice would you give them if they believe they’ve experienced job discrimination?
Remember, employers have to prove a sincere religious motivation for discriminating against gay and transgender individuals. Most businesses who would not otherwise fall within Title VII’s exemption for religious organizations are unlikely to try and do that. It’s one thing if you have a track record of religious opposition, like Hobby Lobby or Chick-fil-A. But if an employer wants to try to escape Bostock by suddenly getting religious, that’s an issue of fact. And any smart lawyer will say, OK, if you want to make that defense, show me the evidence. So I think a lot depends on the kind of evidence that’s available, and that burden would be on the employer.
The truth is, we don’t really know the scope of this, the potential impact of the litigation, because there is no nationwide census of the religious beliefs that we would attribute to for-profit businesses.
Practically speaking, here is what I would say to folks who believe that they’ve been discriminated against because they are gay or transgender. Step one: If you believe you’ve been discriminated against, go to a lawyer quickly. The reason has to do with the fact that there is a clock that’s running — a statute of limitations period. If you wait too long, you can lose the right to seek redress for that discrimination. So if you believe you’ve experienced discrimination, go to a lawyer.
If they’re a good lawyer, they will evaluate what you know and give you an honest assessment about what they think they can prove. And they will help you file the relevant document with the EEOC in order to preserve your rights if and when you choose to pursue a lawsuit. No longer is it the case that you will be dismissed simply because you are gay or transgender because now Title VII protects you. If an employer asserts some kind of defense, be it religious or otherwise, a lot of that rests on what they can prove. And so I think that because of Bostock, LGBTQ folks have much more protection. But only if they actually use it.