Comment by Bri Danial-Harkins
“Just days before Houston's annual LGBTQ Pride Celebration, one of the city's most outspoken LGBTQ opponents landed a huge circuit court victory, with a trio of high court judges finding that his Katy[, Texas] company could deny employment to gay and transgender workers.” In a case of first impression, a panel of judges in the United States Court of Appeals for the Fifth Circuit evaluated the tension between religious liberties and the United States Supreme Court's recent expansion of the definition of sex discrimination. In Braidwood Management, Inc. v. EEOC, the Fifth Circuit exempted Braidwood Management, Inc. (Braidwood), a private, for-profit business, from complying with the antidiscrimination tenets of Title VII because compliance would require Braidwood to violate its sincerely held religious beliefs about homosexuality and transgender conduct. Steven Hotze is the sole owner of Braidwood, and his Christian beliefs underlie the court's ruling.
The Supreme Court first allowed for-profit corporations to hold religious beliefs in Burwell v. Hobby Lobby Stores, Inc. There, the Court allowed Hobby Lobby, a national arts and crafts chain store, to use the Religious Freedom Restoration Act (RFRA) as a means to avoid complying with a law that would force it to violate its sincerely held religious beliefs. The Affordable Care Act (ACA) required employers to provide insurance coverage for FDA-approved contraceptives. The Court granted Hobby Lobby an exemption from that portion of the ACA. Following this decision, employers like Hobby Lobby can seek religious exemptions from laws other than the ACA, such as antidiscrimination laws like the Civil Rights Act of 1964.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against employees and applicants for employment on account of the person's race, color, religion, sex, or national origin. In Bostock v. Clayton County, the Supreme Court expanded the scope of “sex” in Title VII to encompass more than just gender discrimination. The Court found it impossible for employers to discriminate against homosexual or transgender employees without discriminating against them because of their sex. Thus, pursuant to Title VII and Bostock, employers should be forbidden from discriminating against homosexual or transgender employees.
Bostock's landmark expansion of the scope of sex discrimination led the EEOC to publish updated guidelines for businesses with fifteen or more persons in their employ. These guidelines offer standards that businesses can use to alter or maintain their business practices. According to the guidance, employers may not discriminate against employees because the employees do not conform to traditional gender roles. Employers also may not force employees to dress in accordance with their birth-assigned sex nor deny employees the ability to choose a preferred restroom. Further, employers may not justify their discriminatory acts because they believe their customer base would prefer to work with traditional gender-conforming people. Despite this EEOC guidance, Steven Hotze's businesses implement similar discriminatory policies inspired by his religious beliefs. And, according to the Fifth Circuit, he may implement these policies.
This Comment addresses the collision of two strong tenets in American culture: religious freedom (shown through RFRA) and antidiscrimination (shown through Title VII). Braidwood highlights this conflict. This Comment proceeds in five parts. Part II lays the foundational background for understanding the two conflicting statutes in Braidwood, Title VII and RFRA, by evaluating whether they are “super statutes.” Part III sets up the theoretical background behind cases like Braidwood by introducing Douglas NeJaime and Reva Siegel's concept of complicity-based conscience claims and showing how they work through the case example of Hobby Lobby. Part IV recounts the Fifth Circuit's reasoning in Braidwood. Part V then explains the third-party material and degrading harms experienced by those affected by cases like Braidwood, scrutinizes the reasoning in Braidwood by utilizing Justice Ginsburg's dissent in Hobby Lobby, and offers a solution to prevent cases like Braidwood in the future. Part VI briefly concludes.
About the Author
Bri (Brianna) Daniel-Harkins, J.D. Candidate 2025, Tulane University Law School; B.A. 2019, Loyola University New Orleans.
Citation
99 Tul. L. Rev. 161