What the Supreme Court LGBT decision could mean for Catholic employers

Washington, D.C. Newsroom, Jun 18, 2020 / 07:00 pm (CNA).- After the Supreme Court recognized protections for sexual orientation and gender identity in federal law this week, Catholic employers shouldn’t assume they will be protected from future lawsuits, says the Catholic Benefits Association.

The Catholic Benefits Association, which helps ensure that Catholic organizations’ employee benefits are consistent with the faith, says that organizations need to have a consistent religious mission to be given the best chance for a legal religious exemption.

If they don’t have a clearly-defined religious mission, which is implemented in policies throughout the organization, then courts can decide they do not merit religious freedom protections, says Shannon Syzek, director of HR Consultative Services for the association.
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“Saying that you’re Catholic doesn’t mean that you qualify for all the things,” Syzek told CNA. “It does have to do with how your organization is structured, and what is your mission,” she said, which is manifested through “a mission statement, how does the organization operate and does it adhere to its own stated purpose.”

Syzek’s remarks follow a Monday ruling by the Supreme Court that employers cannot fire employees because of their sexual orientation or gender identity. Title VII of the Civil Rights Act forbids employment discrimination on the basis of sex, and the Court on Monday interpreted that to include discrimination on the basis of sexual orientation and gender identity.

Legal experts warn that the decision will have a broad and deep impact on religion, religious employers, and employees, and expect other discrimination lawsuits to make their way to the courts regarding other fields such as public accommodations and athletics.

In his majority opinion, Justice Neil Gorsuch acknowledged that religious employers will have concerns about the effects of the decision, but cited statutory religious protections such as those within Title VII, the First Amendment’s Free Exercise clause, and the Religious Freedom Restoration Act (RFRA) as avenues of recourse for religious employers faced with a discrimination lawsuit.

“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases,” Gorsuch wrote.

While Catholic employers might think they are protected against such lawsuits by federal religious freedom statutes—such as the Religious Freedom Restoration Act (RFRA)—Syzek says that they first need to make sure they would be regarded by the courts as a Catholic institution.

Employers could start by making their religious mission clear in company handbooks and in job descriptions, with workplace codes-of-conduct.

It’s about “what do you have in place that makes sure that you get the rights that are yours to have as a religious employer,” she said. “And it’s as basic as things like a handbook and a job description.”

Yet employers need to make sure their mission is consistent throughout the organization. If a Catholic group wants to be exempt from a government mandate that they provide contraceptive coverage to employees, but a court finds that they offer such coverage in employee health plans, then they might lose their court battle.

A Catholic organization’s health plan could cover “morally non-compliant care” or recognize a same-sex domestic partnership without the knowledge of the employer, she said.

And employers need to be aware of such details as insurance coding systems. Someone at a Catholic diocese might claim its employee health plan does not cover contraceptives or abortions, “but then in a different code” within the plan, “it’s covered,” Syzek said.

And Congress is being advised to examine details such as these when considering which religious institutions might be exempt from government mandates, she said, pointing to a report by the Congressional Research Service on the religious exemption to the federal contraceptive mandate.

While the Trump administration issued a religious exemption to the mandate in 2017 that included the Little Sisters of the Poor, the CRS report says that Congress could help determine the scope of religious exemptions in the case at hand, and in future religious freedom cases.

“Additionally, federal agencies—not Congress—have thus far determined the scope of the related exceptions (i.e., the exemption and accommodation) through implementing regulations associated with the statutory requirement,” the report states.

“Importantly, however, these decisions could be defined by statute, meaning that Congress could set the scope of coverage of preventive health services or the scope of related exceptions, rather than delegating to the agencies.”

The expected slew of religious freedom court cases will probably “start highlighting why the HR rule is so vitally important to Catholic employers,” she said, “and that you have someone that is looking at the comprehensive culture and infrastructure of an organization with respect to being Catholic.”