Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace
Published date | 01 March 2019 |
Date | 01 March 2019 |
DOI | http://doi.org/10.1111/ablj.12135 |
American Business Law Journal
Volume 56, Issue 1, 55–113, Spring 2019
Belief v. Belief: Resolving LGBTQ
Rights Conflicts in the Religious
Workplace
Elizabeth Brown*and Inara Scott**
Employment disputes are increasingly centered on the conflicting moral and reli-
gious values of corporations, their employees, and their customers. These conflicts
are especially challenging when they involve the rights of lesbian, gay, bisexual,
transsexual, and queer/questioning (LGBTQ) employees and customers contra-
posed against the religious beliefs of corporations and their owners. When reli-
gious values compete with civil rights in the employment context, a complex web of
legal protections renders the outcome unclear. Conflicts over these competing rights
can involve a number of broad, thorny legal disputes, including those concerning
the First Amendment and Title VII, fights between secular and religious beliefs,
and competition between religious beliefs and equal protection rights under the
Fourteenth Amendment. This article illustrates the reasons for this growing tension
between the beliefs of business owners and the beliefs of their employees. It explores
recent conflicts between religion and rights in the workplace particularly in the
context of LGBTQ rights, the ways in which state-level regulation complicates
these conflicts, and the potential impact of recent cases addressing these concerns.
It also identifies examples of potential specific conflicts in the context of LGBTQ
rights and suggests the principles that should guide the resolution of these cases,
offering a framework for assessing the hierarchy that a court may use in resolving
cases in which values conflict with rights in the workplace. Finally, it addresses
some of the troubling implications that arise as a result of the resolution of the
potential specific conflicts.
*Assistant Professor, Bentley University.
**Associate Professor, Oregon State University College of Business.
©2019 The Authors
American Business Law Journal ©2019 Academy of Legal Studies in Business
55
INTRODUCTION
Hobby Lobby, Masterpiece Cakeshop, Walgreens, Vistaprint, Family
Dollar: these are just a few of the organizations that have recently been in
the news because of disputes centered on the conflicting moral and reli-
gious values of corporations, their employees, and their customers.
1
In a
time of heightened partisan and ideological divides, these conflicts are
especially challenging when they involve the rights of lesbian, gay, bisex-
ual, transsexual, and queer/questioning (LGBTQ) employees and cus-
tomers contraposed against the religious beliefs of corporations and their
owners.
2
When religious values compete with civil rights in the employ-
ment context, a complex web of legal protections renders the outcome
unclear. Recent case law, however, illuminates some of the principles
courts may now apply in order to develop a hierarchy of rights and inter-
ests in such cases. This article seeks to illustrate the reasons for this grow-
ing tension between the beliefs of business owners and the beliefs of their
employees. Further, this article seeks to identify examples of potential spe-
cific conflicts in the context of LGBTQ rights and analyze their likely reso-
lution. Finally, this article seeks to address some of the troubling
implications that arise as a result of the resolution of the potential specific
conflicts. We also seek to consider these conflicts from a slightly different
perspective than is typically seen. In our analysis, we consider potential
conflicts between an employer who seeks to defend equal access by LGBTQ
individuals and employees holding differing views.
1
Katy Barnitz, Walgreens Sued Over Refusal to Fill Prescription,ALBUQUERQUE J. (Nov. 18, 2017,
11:42 PM), https://www.abqjournal.com/1094997/walgreens-sued-over-refusal-to-fill-prescription.
html (Walgreens sued when pharmacist refused to fill prescription for birth control); Beth
Greenfield, Gay Couple Sues Printing Company Over Homophobic Wedding Pamphlets,H
UFFPOST (Jan.
17, 2018, 10:31 AM), https://www.huffingtonpost.com/entry/gay-couple-sues-printing-company-
over-homophobic-wedding-pamphlets_us_5a5f661ce4b096ecfca9831d (Vistaprint employee
delivered antigay pamphlet to gay couple); Curtis M. Wong, Woman Says a Family Dollar Clerk
Refused to Serve Her Because She’s Gay,H
UFFPOST (Apr. 25, 2016, 1:08 PM), https://www.
huffingtonpost.com/entry/family-dollar-gay-woman_us_571e38f7e4b0d4d3f723dfd3 (Family Dol-
lar clerk accused of refusing to serve gay customer); see also infra notes 45–53 and 101–03 and
accompanying text.
2
See infra Part III; see also Charge Statistics (Charges Filed with EEOC) FY 1997 Through FY
2017, U.S. EQUAL EMP.OPPORTUNITY COMMISSION, https://www.eeoc.gov/eeoc/statistics/
enforcement/charges.cfm (last visited Apr. 24, 2018) (showing that complaints based on reli-
gious discrimination have roughly doubled since 1997, both in total number and as a per-
centage of complaints filed).
56 Vol. 56 / American Business Law Journal
Religious conflicts in the workplace can take many forms. Corporations
seeking to protect values related to diversity or equity may be challenged
by employees who view corporate policies as impermissible political view-
point discrimination
3
or as infringement on their personal religious
values.
4
Employees may assert the right not to abide by diversity policies
requiring equal treatment and nonharassment of LGBTQ employees
and customers.
5
Likewise, corporations may seek exemption from other-
wise generally applicable laws on the basis that they conflict with the cor-
poration’s religious beliefs.
6
Employee rights to religious freedom are not new. Decades of case law
under Title VII of the Civil Rights Act of 1964
7
(Title VII) establishes
the right of employees to be free from discrimination on the basis of
religion,
8
while the Religious Freedom Restoration Act of 1993
9
(RFRA)
protects individuals’ religious freedom from some government
3
See, e.g., Camila Domonoske, James Damore Sues Google, Alleging Discrimination Against Con-
servative White Men,N
AT’LPUB.RADIO (Jan. 9, 2018, 9:36 AM), https://www.npr.org/
sections/thetwo-way/2018/01/09/576682765/james-damore-sues-google-alleging-discrimination-
against-conservative-white-men.
4
See, e.g., Marina Fang, Counselors in Tennessee Can Now Legally Refuse LGBT Patients,HUFF-
POST (Apr. 27, 2016, 6:36 PM), https://www.huffingtonpost.com/entry/tennessee-anti-lgbt-
counselors-law_us_57212b06e4b01a5ebde46cbd; Colin Kalmbacher, Sessions Suggests Social
Security Employees Can Refuse to Process LGBT Claims,L
AW &CRIME (Oct. 18, 2017, 5:00 PM),
https://lawandcrime.com/video/sessions-suggests-social-security-employees-can-refuse-to-process-
lgbt-claims-video/; Robert Pear & Jeremy W. Peters, Trump Gives Health Workers New Religious
Liberty Protections,N.Y.T
IMES (Jan. 18, 2018), https://www.nytimes.com/2018/01/18/us/health-
care-office-abortion-contraception.html.
5
See, e.g., Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552, 553 (7th Cir. 2011)
(Apostolic Christian employee berated and admonished gay coworkers at work); Peter-
son v. Hewlett-Packard Co., 358 F.3d 599, 601–02 (9th Cir. 2004) (employee sought to
post biblical passages condemning homosexuality on top of company diversity post-
ers); Buonanno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069, 1074–76 (D. Colo.
2004) (Christian employee refused to sign pledge to comply with company diversity
policy).
6
See infra note 52 and accompanying text.
7
42 U.S.C. § 2000(j) (2012).
8
See infra Part I.B.
9
42 U.S.C. §§ 2000bb through 2000bb-4 (2012).
2019 / Belief v. Belief 57
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