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Religious Liberties and LGBTQ Employment Discrimination Reforms

Literature Review


Discrimination against LGBTQ communities has been a highly contentious issue in contemporary society. However, despite increased public awareness, the discrimination persists, exacerbated by a lack of legislative and judicial infrastructure that protects this particular subset of the population. Many states within the US do not offer adequate legal protection from discrimination against the LGBTQ community. The Human Rights Campaign (HRC), seeks to sensitize the general public while advocating for the rights and freedoms of LGBTQ people and lobbying for political and legislative reform.

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A landmark decision by the US Supreme Court was viewed by many as a significant milestone towards the alleviation of this problem, but not at a high perceived cost to religious liberties and ministerial protections. Although researchers have increasingly reviewed the extent of ministerial protection and LGBTQ discrimination, few have assessed the two domains together, and those that do have widely differing and inconsistent results. It is, therefore, essential to study the development of legislation aimed at protecting LGBTQ individuals, especially in the workplace, as well as proposed reforms being lobbied for by the HRC, and how these developments encroach on religious liberties; or if they do at all.

LGBTQ discrimination in the workplace

Discrimination perpetuated by homophobia or transphobia is a highly contentious issue in contemporary society. Lesbian women, gay men, bisexuals, transgender, and queer individuals have experienced high rates of discrimination based on their gender identity and sexual orientation (Kattari et al., 2016). This discrimination is significantly higher compared to discrimination against heterosexual and cisgender individuals in the community. Kattari et al. (2016) sought to examine the prevalence and the factors associated with the purveyance of discrimination against cisgender LGBQ individuals, as well as those who identified as transgender. They compared self-reported data from 3838 cisgender LGBQ and transgender individuals to determine the prevalence rates of discrimination based on housing and employment. They found that LGBTQ individuals experienced higher rates of discrimination as compared to cisgender and heterosexual people. However, transgenders faced disproportionately higher rates of discrimination than their LGBQ counterparts. Consequently, factors determining subjection to prejudice were identified as the length of time having ‘been out’-disclosing their sexual orientation or gender identity, gender identity, race, and age (Kattari et al., 2016). This highlights the need for human service professionals, such as the HRC, to actively work against homophobic and transphobic policies and infrastructure that compromises the quality of life for LGBTQ individuals.

The LGBTQ community has fought for the rights and freedoms given to other minorities with varying degrees of success. In modern society, there exists an erratic patchwork of employment-centric protections that are primarily sourced from local and state laws, non-binding agency decisions, and court opinions (Parrington, 2019). There are also diverse arguments from authorities on whether Title VII, which protects against sexual discrimination in the workplace, should cover sexual orientation and gender identity. The primary arguments, as outlined by Parrington (2019), are that sexual orientation is a subset of sex classification because the definition considers one party’s sex in relation to the sex of those to whom they are attracted. This means that an employer with prejudices on the basis of sexual orientation implicitly takes sex into account (Parrington, 2019). Furthermore, sex stereotypes include assumptions, often heteronormative stereotypes, about how a specific gender should be and who they should be attracted to (Parrington, 2019). Therefore, employment decisions made based on these stereotypes are subject to infringement to Title VII.

Despite much research supporting that an individual’s gender identity and sexual orientation do not affect their workplace performance, there still exists extensive employment-related discrimination. Such a discriminatory environment is also attributed to a disproportionately higher level of mental and health disparities against LGBTQ individuals (Parrington, 2019). These findings are also echoed by Sutter and Perrin (2016), who posit that discrimination based on gender identity and sexual orientation has extensive and adverse physical and psychological outcomes, including increased suicidal ideation. Sutter and Perrin (2016), arrived at this critical finding after surveying 200 individuals who identified as LGBTQ. They employed a quantitative approach to analyze their experiences with discrimination, racism, and mental health, with a key recommendation being that interventions from human service professionals are warranted to reduce suicide ideation among this population.

Religious Liberties and Ministerial Protections

The contemporary topics of gender equality, freedom of speech and expression, and LGBTQ rights cannot be divorced from the debate of religious freedom, equality, and accommodation. Employment is a central area that is vastly illuminating the tensions prevalent whenever belief-based decisions are made in the liberal-democratic 21st Century (Alidadi, 2017). For many individuals, religious identity, including the belief or non-belief in a deity, is a core part of their personal identity, and this cannot be shed when entering a professional space. Alidadi (2017) states that this respect for personal autonomy and expression is the core behind the development and enforcement of religious liberties. However, opponents to religious liberties in employment argue that a working relationship is a solemn contractual agreement between master and servant; where religion should have no traction (Alidadi, 2017). Regardless of the basis of the argument, there exists a palpable influence of belief-based decisions in the employment domain.

Reed (2016) emphasizes the extent of religious liberties provision in the contemporary workplace. The researcher outlines explicitly how the landmark ruling of the Supreme Court in Burwell v. Hobby Lobby Stores, Inc., marked a significant blow in the LGBTQ struggle for non-discriminative employment practices. The Supreme Court provided that for-profit bodies had the capacity to exercise their religion within the bounds of the Religious Freedom Restoration Act (RFRA) of 1993. This particular Act allowed exemptions from generally applicable employment laws if compliance with those laws means a substantial burden or compromise to the corporations’ religious freedom (Reed, 2016). It is noteworthy, however, that this provision was revised with the ratification of the Employment Non-Discrimination Act (ENDA) of 2013, which revoked the RFRA religious exemption for for-profit entities regardless of the sincerely held beliefs of their proprietors (Reed, 2016). However, not-for-profit organizations and faith-based entities are still exempt from ENDA on the grounds of ministerial protection.

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Discrimination from a religious context cannot, however, be oversimplified. This is because many religions place the themes of acceptance and inclusivity at or near the core of their faith (Bauges, 2019). Further, Bauges (2019) explores the delicate balance between religious freedoms and anti-discrimination interests with a particular interest in the public employment sector. This researcher found that this balance had, in more recent times, and on the back of several significant rulings, shifted towards greater protection for religious liberties (Bauges, 2019). This highlights the uphill task that human service professionals working towards the elimination of workplace discrimination are faced with.

LGBTQ Legislature in the face of Religion

Religion and sexuality are two aspects of personal life that most people hold to define themselves. However, the two elements, especially in legislative and judicial reform, have been in opposition for a long time. For instance, a version of ENDA had been introduced and tabled in Congress for every year between 1994 to 2013 when it was finally passed (McCormick, 2018). However, the biggest resistance to LGBTQ rights has been religion, with members of society who disapprove of homosexuality, citing that their religion condemns it. Due to the solicitousness of such religious views, ENDA contains broader exemptions than Title VII in that it completely exempts religious organizations from coverage (McCormick, 2018). This represents the level of compromise that bodies lobbying for inclusion and non-discrimination of LGBTQ communities have to undertake to gain religious support.

Junker (2019) contextualizes the employment practices of religious organizations by reviewing catholic institutions. The researcher posits that the Catholic Church is the United States’ largest religious denomination, with a plethora of affiliated institutions that include schools, hospitals, and higher education institutions (Junker, 2019). Historically, the church has terminated employees that are not deemed to adequately model the church’s teachings, especially on sexual and marital issues. In more contemporary times, LGBTQ issues have been in sharp focus, especially in the face of growing social and legal acceptance. Junker (2019) outlines that moral clauses in employment contracts, coupled with inadequate state and federal protection in non-discrimination laws, leave LGBTQ employees vulnerable to employment discrimination in faith-based institutions. However, community mobilization, along with legislative and social reforms, may be critical in embracing those communities that have been relegated to legal and theological margins.

Under contemporary law, it is still highly unclear if a religious employer can legally enforce their prejudice against an LGBTQ employee. This highlights the oscillating legal decisions and discourse that goes between religious liberty and LGBTQ rights and freedoms (Robb, 2019; Brown & Scott, 2019). These two studies take a complementary approach to the religious liberty and anti-discrimination debate, whereby Robb (2019) argues that the representation taken by LGBTQ individuals in several flagship cases has not helped the national narrative that LGBTQ rights are a threat to religious liberty interests. Brown and Scott (2019) also echo this finding, stating that contemporary cases have pitted secular and religious beliefs under the First Amendment and Title VII, and religious beliefs and equal protection rights under the Fourteenth Amendment. These interactions form a complex web of legal liberties and protections that are exacerbated by federal and state- regulations to render the outcomes of modern and future cases unclear.

Methods Section

This study will use a retrospective qualitative review as its primary methodology. The Human Rights Campaign advocacy for LGBTQ rights, as well as the discourse between LGBTQ freedoms and religious liberties, has been extensively covered by contemporary media and research scholars, which gives sufficient qualitative data for review. This data will be triangulated with several significant case reviews as there have been landmark cases resolved by the Supreme Court that lend insightful information on the future legislative and judicial landscape, especially about LGBTQ employment non-discrimination and ministerial protections.

Data Collection Process

Secondary qualitative data will be collected to examine the interaction of LGBTQ employment non-discrimination reforms and religious liberties. By definition, secondary data constitutes data that has been collected and analyzed by another party (Creswell & Creswell, 2017). There are extensive media and legal coverage of cases intersecting one domain or the other, or both, which will be sourced and reviewed from online archives and journals.

Validity Concerns

A validity assessment is essential in evaluating the extent to which a data collection instrument will measure what it is supposed to measure. Validity is concerned with ensuring that if a similar data collection instrument were to be used in a replicated study, comparable results would be obtained with little to no variation. However, as this study will use a retrospective review, there will be no data collection instrument employed, which significantly negates validity concerns.

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Alidadi, K. (2017). Religion, equality and employment in Europe: the case for reasonable accommodation. Ecclesiastical Law Journal, 20(3), 362-387. Web.

Bauges, B. (2019). Balancing religious liberties and anti-discrimination interests in the public employment context: The impact of masterpiece cakeshop and American legion. Common Law Commons; Faculty Sponsorship. 1-52. Web.

Brown, E., & Scott, I. (2019). Belief v. Belief: Resolving LGBTQ rights conflicts in the religious workplace. American Business Law Journal, 56(1), 55-113. Web.

Creswell, J. W., & Creswell, J. D. (2017). Research design: Qualitative, quantitative, and mixed methods approaches. Sage publications. Web.

Junker, M. (2019). Ending LGBTQ employment discrimination by Catholic Institutions. Berkeley J. Emp. & Lab. L., 40, 403-442.

Kattari, S. K., Whitfield, D. L., Walls, N. E., Langenderfer-Magruder, L., & Ramos, D. (2016). Policing gender through housing and employment discrimination: comparison of discrimination experiences of transgender and cisgender LGBQ individuals. Journal of the Society for Social Work and Research, 7(3), 427-447. Web.

McCormick, M. L. (2018). The growing gender/religion divide. Marq. Elder’s Adviser, 19, 197-214. Web.

Parrington, T. (2019). Title VII & LGBTQ employment discrimination: An argument for a modern updated approach to Title VII Claims. Wash. UJL & Pol’y, 60, 293. Web.

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Reed, A. (2016). RFRA v. ENDA; Religious freedom and employment discrimination. Va. J. Soc. Pol’y & L., 23(1), 2-37. Web.

Robb, M. G. (2019). Pluralism at work: Rethinking the relationship between religious liberty and LGBTQ rights in the workplace. Harv. CR-CLL Rev., (54)1, 917-948. Web.

Sutter, M., & Perrin, P. B. (2016). Discrimination, mental health, and suicidal ideation among LGBTQ people of color. Journal of Counseling Psychology, 63(1), 98–105. Web.

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