Just over a year ago, on June 15, 2020, the U.S. Supreme Court handed down a decision making it unequivocally clear that under federal law employers cannot discriminate based on the sexual orientation or transgender status of an employee or prospective employee. It is impossible, Justice Gorsuch wrote in Bostock v. Clayton County, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” and thus to violate Title VII of the Civil Rights Act of 1964.
The Good News and the Bad News
A huge win for LGBTQ people, no doubt, but not without a serious religious caveat. At the end of his opinion, Justice Gorsuch discussed the 1993 Religious Freedom Restoration Act (RFRA), and suggested that because it “operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.” And what would be an appropriate case? That question he did not reach, but the Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc., which was based on the RFRA, casts a very real cloud on the LGBTQ win in Bostock, and suggests that employment discrimination, if recast as a religious discrimination issue, may be permissible.
In Hobby Lobby the Court held that Department of Health and Human Services regulations implementing the Affordable Care Act ran afoul of RFRA to the extent they required certain companies to include contraceptive drugs or devices within the health care coverage provided to their employees. The companies in question were closely held corporations, which for the Court meant the religious beliefs of the owners trumped the regulations. Could Hobby Lobby now refuse to hire a homosexual or transgender person based the owner’s religious beliefs? A case testing that possibility likely waits in the wings.
How a Hobby Lobby Limitation on Bostock Might Affect Minnesota
For LGBTQ people in Minnesota, the Bostock decision could actually be a setback. The state’s Human Rights Act has long protected them from employment discrimination, and it applies to all employers. Title VII does not cover employers with fewer than fifteen employees. If RFRA were found to limit protections against discrimination, however, the ultimate effect of Bostock could be to curtail Minnesota’s state law protections. SHL will be monitoring this issue closely, and will report any important developments in subsequent blog posts.