This Insights blog addresses the aftermath of the monumental U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S.Ct. 1731 (June 15, 2020) and the ongoing collision of the right to religious freedom enjoyed by religious organization employers and the civil liberties of individual employees codified in Title VII of the Civil Rights Act of 1964.

Bostock v. Clayton County, in Brief
In Bostock, the Supreme Court held that Title VII’s prohibition of discrimination in employment because of an employee’s “sex” includes a prohibition of discrimination based on the employee’s sexual orientation, including homosexuality or transgender. Justice Gorsuch, writing for a majority of the high Court, opened the opinion with these words:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

The Court in Bostock, noted the statutory exception for religious organizations: “As a result of its deliberations in adopting the law [Title VII], Congress included an express statutory exception for religious organizations. § 2000e-1(a).” Id. Notably, no “religious corporation” employer was involved in Bostock, and the Court recognized as much in conclusion: “So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.” Id. (emphasis added).
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