Guest Post: Does Hobby Lobby Allow Gender Discrimination?

Catherine Fisk

Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on the law of the workplace, legal history, civil rights and the legal profession. She is the author of dozens of articles and four books, including the prize-winning Working Knowledge: Employee Innovation and the Rise of the Corporate Intellectual Property, 1800-1930, and Labor Law in the Contemporary Workplace. Her research focuses on workers at both the high end and the low end of the wage spectrum.  She has written on union organizing among low-wage and immigrant workers as well as on labor issues in the entertainment industry, employee mobility in technology sectors, employer-employee disputes over attribution and ownership of intellectual property, the rights of employees and unions to engage in political activity, and labor law reform.  She is the co-author, with UCI Law Professor Ann Southworth, of an innovative interdisciplinary casebook, The Legal Profession. Her current public service includes membership on the SEIU Ethics Review Board, the Board of Directors of the Wage Justice Center, and committees of the Law & Society Association.  Prior to joining the founding faculty of UC Irvine School of Law, Fisk was a chaired professor at Duke Law School, and was on the faculty of the University of Southern California Gould School of Law and Loyola Law School in Los Angeles.  She practiced law at a boutique Washington, D.C. firm and at the U.S. Department of Justice.  She received her J.D. at UC Berkeley, and an A.B., summa cum laude, from Princeton University.

Catherine Fisk is the Chancellor’s Professor of Law at University of California, Irvine.

The Supreme Court’s ruling in Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), opens the door to employers claiming that the Religious Freedom Restoration Act grants them the right to discriminate against women when they claim that the discrimination is religiously motivated. Justice Alito’s majority opinion said the following about whether religious freedom would shield employers from Title VII claims: “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Id. at 2783. Relatively few religions discriminate on the basis of race, but many discriminate on the basis of gender, gender identity, and sexual orientation. Is the reference to race discrimination in Hobby Lobby an implicit acknowledgement that RFRA grants employers the right to engage in gender discrimination that would otherwise violate Title VII?

The issue is not far-fetched. Some religious organizations have recently begun training business leaders in secular companies in strategies “to minister to employees in the workplace,” by “challenging believers to grow in their faith and presenting the gospel to non-Christian employees.”   While there is no evidence that these trainings suggest employers can discriminate on any basis other than religion, consider the 1986 Supreme Court case of Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). Dayton was a private “nondenominational” nonprofit elementary and secondary school with a corporate charter that required the educational staff to be born-again Christian and to affirm their belief in several traditional Christian precepts, along with two that are less traditional. One was that one Christian should not take another Christian into courts of the State, but instead would acquiesce in the final authority of the school’s board of directors. The other was that mothers should stay home with their preschool age children.

The school decided not to renew the contract of a pregnant teacher, citing the religious doctrine that mothers should stay home with their children, and when she hired a lawyer to protest this decision, the school suspended her immediately for challenging the nonrenewal decision in a manner inconsistent with the internal dispute resolution doctrine. Would Dayton have an argument under Hobby Lobby that RFRA allows it to discriminate against mothers of young children? The Supreme Court decided the case on a procedural ground and did not reach the merits.

Title VII prohibits employment policies that prohibit employment of mothers (but not fathers) of young children. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). While it allows churches and religiously affiliated schools to discriminate on the basis of religion in hiring ministers and teachers to teach religious subjects, it does not allow discrimination on bases other than religion. The Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694 (2012), ruled that the First Amendment protects the right of churches to discriminate on bases other than religion in hiring ministers even though Title VII contains no such exemption. But Dayton school sought something more: the right of a school (not a church, and one formed by a consortium of churches rather than a single church) to discriminate against women in employment as teachers of secular subjects and the right to prevent employees from filing a charge with the EEOC or a state fair employment commission.

RFRA requires government to show it has a compelling interest in enforcing laws that burden the free exercise of religion, and Hobby Lobby said that the government has a compelling interest in eliminating race discrimination. Does government also have a compelling interest in prohibiting sex discrimination? The Court held in Roberts v. Jaycees, 468 U.S. 609 (1984), that the government does have a compelling interest in eliminating sex discrimination, and on that basis rejected a First Amendment freedom of association claim by a private membership organization that refused to admit women as full members. Title VII is the least restrictive means of achieving the interest in promoting gender equality at work. The arguments that were so important to the majority in Hobby Lobby – that the contraceptive mandate was not the least restrictive means to serve a compelling interest in providing women access to health care because it allowed so many exceptions – are not available to employers that wish to discriminate on the basis of gender. While, as noted, Title VII has some exemptions for religious employers, they are far narrower and are not exemptions that allow sex discrimination.

Hobby Lobby is nevertheless cause for concern. First, why did Justice Alito mention only the government’s interest in prohibiting race discrimination and not sex discrimination? Second, the current Court’s solicitude for free exercise – as reflected in Hobby Lobby and Hosanna Tabor – suggests it may weigh religious freedom more heavily than the free association claims of the Jaycees. Third, the Hobby Lobby majority accepted without question that the employer’s religious beliefs actually conflicted with the law and disregarded evidence and argument that the four methods of contraception at issue in that case do not in fact cause abortions and, therefore, that the religious belief was not infringed by the mandate. The Court has said that the key to religious freedom claims is whether a belief is “sincerely held,” not whether the person who asserts the belief is correctly interpreting the commands of the religion. How is a court ever to know whether a religious belief is sincerely held? As applied to a case like Dayton, would a court accept without question the sincerity of a purported religious belief in sex discrimination and the necessity of adherence to an internal dispute resolution system to resolve all employment disputes? Could a business insist that the religious ministry of its owners requires all employees to live what they consider a Christian lifestyle and argue that all employees are, in that sense, part of the religious ministry? Finally, Hobby Lobby is the first time that the Court has held that some people can inflict harm on others in the name of free exercise of religion. Before Hobby Lobby, the Court’s religious freedom cases typically involved religious people who quit their jobs, or wished to avoid the draft or to ingest prohibited substances, and recognition of their right to free exercise did not infringe others’ rights to equal treatment under law.

Although RFRA applies only to federal statutes, which means it does not affect state antidiscrimination laws, it suggests the Court is poised to expand the First Amendment rights of religious business leaders to insist that their corporate policies reflect their views of what a Christian lifestyle requires.


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