Religious Groups Say Law Supports LGTBQ Discrimination If Applied Equally

Discriminating against someone on the basis of their sexual orientation when it comes to employment is only illegal if men and women are treated differently, a group of religious organizations are arguing as part of a class action lawsuit filed in Texas.

The U.S. Pastor Council filed an amended version of its class action lawsuit against the U.S. Equal Employment Opportunity Commission on Sept. 9 that claims employers are within their rights to refuse employment to those in the LGBTQ community if they do so to men and women equally. They claim a recent decision by the U.S. Supreme Court supports that stance.

On June 15, the Supreme Court ruled 6-3 in the case of Bostock v. Clayton that “an employer who fires an individual merely for being gay or transgender violates Title VII” of the federal Civil Rights Act. The ruling was considered a landmark decision in favor of LGTBQ rights.

Lawyers for the U.S. Pastor Council say the reasoning the Supreme Court built its decision on actually works in their favor. It doesn’t prohibit discrimination against employees or job candidates on the basis of their sexual orientation, it only prohibits unequal discrimination based on sexual orientation. If LGTBQ men and women are treated equally in discrimination, it is legally allowed, the plaintiffs are now arguing.

The high court’s interpretation of the law in the Bostock case “does not prohibit discrimination against bisexual employees, so long as the employer regards (bisexuality) as equally unacceptable in a man or a woman,” the U.S. Pastor Council’s revised class action lawsuit says.

The class action lawsuit was first filed in 2018 and originally argued against the EEOC’s interpretation of the Title VII ban against employment discrimination based on sex. Attorneys for the U.S. Pastor Council said the EEOC should allow for a religious exemption from the law when it comes to addressing LGTBQ rights.

In December, U.S. District Judge Reed C. O’Connor, the judge overseeing the class action, agreed to put the case on hold while the U.S. Supreme Court took up the Bostock case and two  similar cases, knowing the high court’s actions could impact the U.S. Pastor Council matter.

As part of the new amended class action lawsuit, lawyers for the Pastor Council said the Supreme Court’s recent decision also opened the door to interpreting Title VII as allowing employers to “continue firing or (refusing to hire) employees who engage in homosexual or transgender behavior, by establishing rules of conduct that apply equally to both sexes and would lead to the same result” regardless of gender.

The plaintiffs say they require all of their employees to “live according to Biblical teaching on matters of sexuality and gender.” Specifically, they say the Bible condemns homosexual behavior, cross-dressing and other gender non-conforming behavior. Therefore, they “will not consider practicing homosexuals, bisexuals, crossdressers, or transgender or gender non-conforming individuals for church employment—including employment for non-ministerial positions.”

Ultimately, the U.S. Pastor Council and potential Class Members are asking the court to declare that the Religious Freedom Restoration Act should supersede Title VII and protect their “prerogative” to refuse employment to “individuals who are engaged in sexually immoral behavior (and) who are engaged in gender non-conforming behavior,” including all members of the LGBTQ spectrum.

They also seek the court’s protection in being able to “refuse to offer benefits to same-sex partners of their employees … (and) enforce sex-specific dress and grooming codes and prohibit employees from entering or using restrooms designated for the opposite biological sex.”

The U.S. Pastor Council, the national iteration of the Texas Pastor Council, is a group of nearly 1,000 member churches that advocates for conservative issues. The Texas Pastor Council spearheaded the unsuccessful “bathroom bill” campaign in Texas to stop local governments from enacting laws to grant transgender people the right to use the public bathrooms that match their gender identity. The Bear Creek Bible Church and Braidwood Management Inc. of Texas are also lead plaintiffs in the class action.

In addition to the EEOC, the commission’s individual members are listed as defendants in the case along with U.S. Attorney General William P. Barr.

Have you been discriminated against for employment on the basis of your sexual orientation? Tell us about it in the comment section below.

The U.S. Pastor Council and the proposed Class Members are represented by Jonathan F. Mitchell of Mitchell Law PLLC, and Charles W. Fillmore and H. Dustin Fillmore III of The Fillmore Law Firm LLP.

The U.S. Pastor Council LGTBQ Rights Class Action Lawsuit is U.S. Pastor Council, et al. v. Equal Employment Opportunity Commission, et al., Case No. 4:18-cv-824, in the U.S. District Court for the Northern District of Texas.

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