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SCOTUS Favors Employers’ Religious Liberties Over Employee Rights

The Supreme Court of the United States (SCOTUS) issued two important decisions this week in cases reflecting the ongoing legal tensions between employers’ religious liberties and the right of employees to be free from discrimination; and in both cases, SCOTUS tipped the scales decidedly in favor of employers’ religious liberties.

First Amendment Supersedes Employment Discrimination Claims

The Supreme Court issued a decision in two similar cases – essentially dismissing the discrimination claims brought by two Catholic school teachers who were discharged from their instructional positions at two different Catholic schools in southern California. In Our Lady of Guadalupe School v. Morrissey-Berru (19-267), and St. James School v. Biel (19-348), the Supreme Court held by a 7-2 majority that the U.S. Constitution’s First Amendment Religion Clauses foreclose the teachers’ employment discrimination claims. In the OLG case, the former teacher sued for age discrimination; in the St. James case, the teacher was dismissed after she sought a leave of absence for cancer treatment. The teacher later passed away.

Relying on the “ministerial exception” outlined in the 2012 SCOTUS decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), the majority opinion, authored by Justice Samuel Alito, noted that “religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg in dissent, criticizes the majority for its distillation of the Hosanna-Tabor standard into “a single consideration: whether a church thinks its employees play an important religious role,” and observes that it “strips thousands of schoolteachers of their legal protections.”

Religious Exemptions From Birth Control Mandate Under the Affordable Care Act 

In a similar but procedurally more complicated ruling, the Supreme Court upheld the federal government’s expansion of a federal rule that exempts employers with religious or moral objections from being required to provide employees with health insurance coverage for birth control under the Affordable Care Act (ACA).

In a 7-2 decision in Little Sisters of the Poor v. Pennsylvania (19-431), SCOTUS tackled the latest skirmish of the ACA’s birth-control mandate. The ACA mandate generally requires employers to provide female employees health insurance with access to contraception. Religious entities have repeatedly challenged the rules, as well as the opt-out accommodation process developed under the Obama administration for employers with religious or moral exemptions.  (The Trump administration had expanded those exemptions.)

With the majority opinion authored by Justice Clarence Thomas, SCOTUS held that the departments of Health and Human Services, Labor, and the Treasury had authority to issue rules for employers. In a concurring opinion, Justice Elena Kagan (joined by Justice Stephen Breyer) acknowledges the statutory authority of the federal agencies, but cautions, “that does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside the HRSA’s [Health Resources and Services Administration’s] statutory authority, but also as ‘arbitrary [and] capricious.’” 

In her dissenting opinion, Justice Ginsburg (joined by Justice Sotomayor) notes, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” 

Takeaways for Discerning Employers

While these Supreme Court decisions, in tandem, may bolster employers’ confidence in their sincerely held beliefs and moral objections about certain employment-related decisions, it is also important to recognize its limitations.  Employers should strategize with their leadership and legal counsel to carefully weigh whether and to what extent these decisions should (or will) inform their own policies and practices, as well as any resulting reputational impact and workplace morale considerations.  

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 191


About this Author

Jeanine Gozdecki, Barnes Thornburg Law Firm, South Bend, Labor and Employment Law Attorney

Jeanine M. Gozdecki, a partner in the firm’s Labor & Employment Department, has spent 25 years representing, counseling and advocating for her business clients in virtually all aspects of the employment relationship. Ms. Gozdecki is recognized by the Best Lawyers in America for her employment law work and was recognized as "Lawyer of the Year" in 2013.

Ms. Gozdecki partners with her clients to develop strategies, assess risks and solve problems. She works behind the scenes to manage significant employment challenges, including...

Gray Mateo Harris Attorney

As a native Spanish speaker from the Dominican Republic, she has a passion for providing Spanish language representation to clients. This involves working with Spanish language witnesses and documents, including document review, depositions, mediations, administrative proceedings, internal investigations and employment and other training.

Gray has extensive experience defending employers in litigation at both the state and federal court levels through trial and appeal, and has defended employers in restrictive covenant, contract- and tort-based actions and in claims arising out of state statutes, such as the Illinois Human Rights Act, the Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act and the Illinois Educational Labor Relations Act. On the federal level, she handles cases involving the Family and Medical Leave Act, Equal Pay Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act and the Fair Labor Standards Act. She routinely represents clients before the Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Illinois Department of Labor and the National Labor Relations Board.

Gray counsels clients on virtually all stages of the employment relationship, including drafting offer letters and negotiating employment, restrictive covenant, severance and separation agreements, as well as drafting and implementing critical workplace policies and procedures, conducting employee and management training, and strategically advising on workforce restructuring and union avoidance issues.

Advising and representing employers with respect to traditional labor matters represents a significant portion of Gray's practice, as she routinely advises clients on union organizing issues, election proceedings, collective bargaining, grievance and contract arbitrations, labor due diligence reviews, and unfair labor practice and other proceedings before the NLRB.

Deeply involved in the community, Gray has provided pro bono representation to several nonprofit organizations on employment matters, and has represented indigent clients as part of the Circuit Court of Cook County Domestic Violence Clinic and the Northern District of Illinois Judicial Settlement Assistance Program. Gray is actively involved with the Illinois Hispanic Chamber of Commerce, the Hispanic Lawyers Association of Illinois, the Black Women Lawyers Association and the American Bar Association. She co-chairs the Diversity and Inclusion Committee of the Women's Coalition.

She also serves as a mentor to students interested in the legal profession through involvement with the University of Illinois College of Law. Gray is a hearing officer and board member for the Cook County Sheriff's Merit Board, presiding over disciplinary matters as well as candidate certification and promotional interviews. She previously served as board member and co-chair of the personnel committee for Rape Victim Advocates, the largest rape crisis center in Illinois. She has also served on the associate board of The Chicago Committee, a nonprofit group whose mission is to advance minority attorneys in law firms.

Gray has been named to the Illinois Super Lawyers Rising Stars (2016-17) and as a Leading Lawyers Emerging Lawyer in 2017. She has also been featured in various segments by Univision television and Hispanic Executive Magazine.