Discriminating on the Basis of Gender Norms, and the Possible Reach of ‘Hobby Lobby’


Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

It’ll be months before we have an outcome in the Hobby Lobby and Conestoga Wood Specialties cases and know just how far the Roberts Court is willing to go to protect corporate interests at the expense of employee rights. The Court has before it a host of possible outcomes, from a narrow ruling finding that the Religious Freedom Restoration Act (RFRA) does not cover claims made by “corporate persons” to a broad ruling creating sweeping religious exercise “rights” for corporations. But whatever the outcome, the decision is likely to raise more questions than it answers.

Among those big unanswered questions lurking in the shadows of Hobby Lobby and Conestoga Wood Specialties is whether or not RFRA could be used to undermine existing protections against discrimination, like those under Title VII of the Civil Rights Act, the federal law that outlaws discrimination on the basis of a host of factors, including sex. Add to that question the role of state-level RFRAs like the one recently passed in Mississippi, which appears to be an open invitation for businesses to discriminate in the name of religious belief, plus the fact that state and local anti-discrimination laws, when they exist at all, ofter a patchwork of protections, and the legal landscape that emerges is frankly a mess.

Title VII prevents employers from discriminating in their employment practices (such as hiring, firing, and promotions and pay) based on race and color, sex, national origin, and religion. The law includes a broad exemption for religious employers and provides that houses of worship and religiously affiliated organizations like universities and hospitals may discriminate in employment practices on the basis of religion, allowing them to prefer members of their own faith in hiring regardless if the employee’s work is religious in nature or not.

But Title VII does not recognize a religious exemption to its prohibition on sex discrimination. That’s important in the context of the contraception challenges, and as more and more employers voice workplace objections to gender equality as an issue of religious freedom.

During oral arguments in the Hobby Lobby and Conestoga Wood Specialties cases, Supreme Court Justice Elena Kagan asked Paul Clement, the attorney for Hobby Lobby, directly what would happen should the Court find for his client—could a religious objection be raised to anti-sex-discrimination laws, for example? Wouldn’t religious objections to other workplace protections “come out of the woodwork,” Kagan asked? After all, what incentive would an employer have for following any anti-discrimination measure if the Supreme Court rules the RFRA can be used as a defense? Clement dodged the question. He brushed off Justice Kagan’s concerns and what he called “the government’s parade of horribles,” referencing possible legal challenges to other anti-discrimination measures. But at the end of the exchange, he finally conceded that while hypothetically someone could raise such an objection, we had to trust the courts that they would not support them. “Just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats,” said Clement. ­­

That’s not exactly comforting—and it wasn’t designed to be. Conservatives understand full well the possibility that a broad decision in Hobby Lobby could open the door for further attacks on Title VII in addition to any pushing back advancing workplace equality measures like the Employment Non-Discrimination Act (ENDA).

As it stands, Title VII’s protections against sex discrimination include claims based on sex stereotyping and sexual harassment, including same-sex sexual harassment. But claims based on gender identity and sexual orientation have come out mixed, which means the law here is in flux and vulnerable. Just last month, a federal district court ruled that Peter TerVeer’s lawsuit against his former employer, the Library of Congress, could move forward. TerVeer argued that once his boss found out he’s gay, the boss subjected TerVeer to a “hostile environment in which he imposed his religion and sexual stereotypes” on TerVeer. When TerVeer complained about the hostile environment to supervisors, he claimed he was subjected to a “campaign of retaliation.” TerVeer sued the government, arguing that he was discriminated against because he’s gay, in violation of Title VII. The government tried to dismiss TerVeer’s claims, arguing that Title VII’s ban on sex discrimination claims did not protect against being discriminated against on the basis of sexual orientation. But U.S. District Court Judge Colleen Kollar-Kotelly denied the government’s request; which she didn’t rule on the merits of TerVeer’s claims, she allowed them to move forward.

Despite the fact that the government moved to dismiss TerVeer’s claims, it is important to note that Chai Feldblum, commissioner of the Equal Employment Opportunity Commission (EEOC) and key advocate behind advancing workplace protections for the LGBT community, has made the case that marriage equality helps pave the way for workplace protections under existing laws like Title VII. Feldblum argues:

[A]ssume a male employee is fired because he marries another man. The reason for that employee’s firing makes reference to the sex of the people involved, and the antipathy to marriage by a same-sex couple is deeply embedded in a history of gender roles and sex stereotypes. From my perspective, that is a simple case of sex discrimination.

In other words, like the administration’s position on marriage equality, its position on workplace protections for the LGBT community appears to be evolving.

If that’s the case, and if we have arrived at the moment where federal courts recognize Title VII claims on the basis of sexual orientation, that means employers can’t justify workplace discrimination on the basis of their religious objections to homosexuality and nonconforming gender identities. That is, unless the Roberts Court recognizes broad religious corporate rights under the RFRA in the Hobby Lobby and Conestoga Wood Specialties cases. Then all bets are off.

Like this story? Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

To schedule an interview with contact director of communications Rachel Perrone at rachel@rhrealitycheck.org.

Follow Jessica Mason Pieklo on twitter: @hegemommy

  • crash2parties

    “But claims based on gender identity and sexual orientation have come out mixed”

    Lumped together, that is certainly true. Separated, however, and the situation is clarified quite a bit and actually stands to serve the author’s point more strongly, I think. Claims based on gender identity have come out primarily in favor of them being a prohibited form of discrimination. The basis of those decisions is summed in the statement of one of the earlier cases, where a judge stated that, “discrimination based on change of sex [sic] is still discrimination based on sex, just as discrimination based on change of religion would still be discrimination based on religion” (paraphrased). Using Title VII for sexual orientation actually has been based on sex & gender social expectations for an employee, a tactic that indeed has had mixed results. The difference seems to come down to a split between biological sex and social gender.

    There have been enough medical, genetic & developmental biology studies to show that there are androphillic brains and gynephillic brains (incl., aspects such as pheromone receptors, which, strictly speaking are endocrinology, not neurology). As such, being gay or lesbian can and perhaps should be seen as a very specialized form of transgender, where only the development of sex attraction is “flipped” or mixed. Argued as such, sexual orientation would then clearly fall under discrimination based on sex, rather than gender.

    • Arekushieru

      I am leery of basing discrimination solely on sexual orientation, however. I think discrimination can and should be based on gender orientation and the way social norms affect them, as well. After all, the patriarchy survives because the feminine is viewed as bad while the masculine is viewed as good. The latter typically benefits and the former is typically harmed. It’s the same reason you may see a backlash more commonly against homosexual men or transwomen, especially those who use what is often perceived as feminine behaviour by the white male hierarchy.