OFCCP Weekly Review: November 2021 | Association of Direct Employers


Sunday, October 31, 2021: Court exalts CERTAIN rights of private for-profit companies over CERTAIN LGBTQ + rights in religious freedom treaty in latest ruling on collision of rights case

Making like a box of chocolates (something in it for everyone, and real surprises)

Many first impression legal issues now resolved after Bostock

The decision of the case is Bear Creek Bible Church & Braidwood Management, Inc. v. Commission for Equal Employment Opportunities US Pastor Council et al v. Equal Employment Opportunity Commission et al, Docket No. 4: 18-cv-00824 (ND Tex. Oct 06, 2018), Court Docket (70 pages)

Five basic things to know before tackling MANY specific case decisions, below:

1. This is the case LGBTQ + advocates fear: A head-on collision of rights case that a small for-profit company brought to seek a bill of rights to discriminate against LGBTQ + employees on the basis of sincere belief of the owner that the religious scriptures needs.

As quoted from Justice O’Connor’s decision: “A woman shall not wear that which is a man’s, neither shall a man put on a woman’s garment, for all that do this is an abomination to the Lord your God. Deuteronomy 22: 5 (King James Version)

2. Undoubtedly fully aware that this case could end up in SCOTUS, Fort Worth Federal District Court Judge Reed O’Connor (the Go To for Conservatives Judge who previously declared Obamacare unconstitutional) wrote a carefully drafted and thorough treatise. on the rights to religious freedom enjoyed by companies under Title VII of the 1964 Civil Rights Act, but also under the RFRA (the Restoration of Religious Freedom Act 1993). Former US House of Representatives Chuck Schumer (D-NY), now US Senate Majority Leader, introduced and sponsored RFRA in 1993. Get to know this acronym. We will see many of them in the years to come, as this law complements the religious protections that the First Amendment to the United States Constitution and the Title VII Religious Freedom Exception otherwise provide. Here is how SCOTUS previously described the interaction of Title VII religious freedom rights with both the First Amendment of the U.S. Constitution and those of the RFRA:

“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; this guarantee is at the heart of our pluralist society. But concerns about how Title VII might intersect with religious freedoms are not new; they even predate the adoption of the law. As a result of its deliberations to pass the law, Congress included an express statutory exception for religious organizations. § 2000e-1 (a). This Court also recognized that the First Amendment may prohibit the application of employment discrimination laws “to complaints concerning the employment relationship between a religious institution and its ministers”. [citations omitted] And Congress went even further in the Restoration of Religious Freedom Act 1993 (RFRA), 107 Stat. 1488, codified at 42 USC § 2000bb et seq. This law prohibits the federal government from substantially increasing a person’s exercise of religion unless it can demonstrate that it serves both a compelling government interest and is the least restrictive means of promoting that interest. § 2000bb-1. Because the RFRA functions as a sort of super law, replacing the normal functioning of other federal laws, it could replace the Title VII commands where appropriate. See § 2000bb-3. Bostock v. Clayton Cnty, 140 S. Ct. 173, 1754 (2020)

3. This case is also one of the few that offers lawyers a clear look at the head-on collision of rights on issues that SCOTUS specifically reserved for future litigation in its groundbreaking 2020 article. Bostock v. Clayton County case decision:

“Employers are concerned that our decision will extend beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say gender-separated bathrooms, locker rooms and dress codes will prove unsustainable after our decision today. But none of these other laws is before us; we have not had the advantage of contradictory testing the meaning of their terms, and today we are not prejudging such a question. Under Title VII, we also don’t pretend to address bathrooms, locker rooms or anything like that. The only question before us is whether an employer who fires someone simply because they are gay or transgender has fired or otherwise discriminated against that person “because of that person’s sex.” Bostock at p. 1753

4. Procedural legal issues (understand, but ignore: highway debris)

Much of the court’s lengthy ruling is devoted to the following three procedural legal issues, which are of great interest to great lawyers, but not to other mere mortals.

Declaratory Measures: Bear Creek Bible Church and Braidwood Management, Inc. sued the EEOC (no EEOC charges are pending) in federal court in Fort Worth, Texas, in a so-called ” declaratory judgment ”. In an action for “Declaratory relief“, the claimant (the prosecuting party) seeks a declaration from a court before any specific dispute regarding the rights of the claimant, fearing that he may otherwise be prosecuted later for failure to comply with a threat of violation of the law. In other words, the plaintiff simply wants a bill of rights before they are likely to be sued.

Summary Judgment: The parties in this case have requested to be tried by “Summary judgment,” one of the three main forms of trial (along with trial by jury and trial by bench). A summary judgment trial can take place when there are no “material facts” in dispute (avoiding the need for an investigator, such as a jury or a judge hearing witnesses to determine what is a. real fact: the traffic light, for example, red or green). On the contrary, in a summary judgment, only the applicable law in dispute is at issue.

Class Action Issues: Plaintiffs have brought a class action lawsuit on behalf of two categories: (1) every employer in the United States who opposes homosexual or transgender behavior on sincere religious grounds (“Religious Employers Class”) ; and (2) every employer in the United States who opposes homosexual or transgender behavior for religious or non-religious reasons (“All Opposing Employers Class”).

5. Bear Creek Church is a non-denominational church located in Keller, Texas. Bear Creek Church demands that its employees live by biblical teachings on issues of sexuality and gender. In accordance with these teachings, Bear Creek Church does not recognize same-sex marriage. Any church employee who enters into a same-sex marriage will not receive benefits for their same-sex partner and risks immediate termination. Bear Creek Church also requires its employees to use toilets designated for their biological sex.

Braidwood Management, Inc. employs approximately seventy people, who work in one of the following three companies, each of which is owned or controlled by Dr. Stephen Hotze: the Hotze Health & Wellness Center, Hotze Vitamins and Physicians Preference Pharmacy International LLC. Because Hotze operates these entities as Christian businesses, it does not allow Braidwood to employ people who engage in homosexual behavior or gender non-conforming conduct of any kind. Hotze does not allow Braidwood to recognize same-sex marriage or extend benefits to an employee’s same-sex partner as he believes doing so would give his approval to the same-sex behavior and make him complicit in sin, violating his sincere religious beliefs. Hotze will also not allow Braidwood to recognize same-sex marriage in part because Texas law continues to define marriage as the union of a man and a woman. Hotze believes Texas law continues to bar private employers such as Braidwood from recognizing same-sex marriage. Hotze does not allow Braidwood employees to use toilets reserved for members of the opposite biological sex, regardless of the gender identity the employee asserts. Braidwood also enforces a gender-specific dress and grooming code that requires men and women to wear professional attire based on their biologically assigned gender. Men are prohibited from wearing earrings, but women can. Men who have customer contact must wear a tie; women are not allowed to wear ties. Women can wear skirts, blouses, heels and nail polish, while men are prohibited from wearing these items. Identifier. Cross-dressing of any kind is strictly prohibited. Hotze applies this gender-specific dress and grooming code to maintain the professionalism of his businesses and to practice his belief that the Bible requires men to dress as men and women to dress as women.


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