Academic journal article Vanderbilt Law Review

Delimiting Title VII: Reverse Religious Discrimination and Proxy Claims in Employment Discrimination Litigation

Academic journal article Vanderbilt Law Review

Delimiting Title VII: Reverse Religious Discrimination and Proxy Claims in Employment Discrimination Litigation

Article excerpt

I. INTRODUCTION

In July 2012, Chick-fil-A President and Chief Operating Officer Dan Cathy remarked to a religious publication that he and his company supported the "biblical definition of the family unit."1 Chick-fil-A is popularly known as a Christian company that promotes conservative, biblical values.2 Mr. Cathy's statement was largely interpreted by the media as an "anti-gay" sentiment rooted in religious beliefs.3 In response to Mr. Cathy's remark, government officials from Boston and Chicago refused to allow the restaurant chain to open new locations in their cities, citing the organization's official policy of "discrimination."4

The Chick-fil-A controversy demonstrates how the intersection of law, religion, and sexual orientation has come to the forefront of the public consciousness. Indeed, sexual orientation discrimination is the civil rights battleground of the modern era.5 Public attitudes on gay rights are evolving, and the legal landscape governing sexual orientation discrimination is only just beginning to develop.6 No federal law prohibits sexual orientation discrimination, despite the repeated introduction of bills over the last twenty-five years.7 States are roughly split on the appropriate response to sexual orientation discrimination; twenty-one states and the District of Columbia prohibit all employers from discriminating based on sexual orientation, while nineteen states provide no protection against it.8 Nearly two hundred municipalities and local governments, like Boston and Chicago, have chosen to make sexual orientation discrimination illegal within their jurisdictions.9 In short, legislatures, courts, organizations, and individuals around the nation are working to reconcile the important values implicated by sexual orientation discrimination.

In the many jurisdictions where sexual orientation discrimination is not illegal, a new litigation tactic has emerged: reverse religious discrimination claims. Essentially, a reverse religious discrimination claim allows "non-members of religious groups" to sue supervisors for discriminating against them because they do not share their supervisors' religious belief that being gay is wrong.10 Reverse religious discrimination is a historically underused claim that is gaining traction as a method to remedy sexual orientation discrimination. Reverse religious discrimination claims can be brought in all jurisdictions under Title VII of the Civil Rights Act of 1964.11 Accordingly, they have the potential to act as proxy claims12 for litigants seeking compensation for sexual orientation discrimination in jurisdictions where the discrimination is not illegal.

Although no Chick-fil-A employee has filed an action in response to Mr. Cathy's statement, it may be vulnerable to a reverse religious discrimination claim. Under this claim, a homosexual or LGBT13 employee who was fired by Chick-fil-A could seek reparations for wrongful termination, even in a jurisdiction where the state or local legislature has chosen not to prohibit sexual orientation discrimination. LGBT employees who are alleged victims of sexual orientation discrimination have already filed similar claims against their employers in several jurisdictions. Circuit courts are divided on how to treat reverse religious discrimination claims and the associated policy issues.

This Note attempts to explore the most challenging legal questions raised by reverse religious discrimination claims. What standard of review is most appropriate? Should courts provide effective protection against sexual orientation discrimination, even in jurisdictions where a legislature has chosen not to prohibit it? And finally, how should the legal system deal with the conflicting religious expression and equal protection issues implicated by reverse religious discrimination claims?

The primary goals of this Note are to analyze these new and controversial issues and to propose a pragmatic solution. Part II discusses the constitutional values implicated by reverse religious discrimination claims; the prima facie analysis for Title VII discrimination claims; federal, state, and local sexual orientation discrimination laws; and unsuccessful litigation strategies for sexual orientation discrimination. …

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