President Biden issued Executive Order (EO) on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation on Jan. 20, 2021.[1] While the EO itself is a high level policy statement and does not, in and of itself, immediately change any practices for public school districts, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of transgender and other LGBTQ students.
What policy is asserted in the EO?
The Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” Additionally the EO provides: “[e]very person should be treated with respect and dignity without regard to who they are or whom they love; “[a]dults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes”; and “[p]eople should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.”
The EO bases its reasoning on Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent case of Bostock v. Clayton County, which held that Title VII’s prohibition against “sex discrimination” includes a prohibition against discrimination based on sexual orientation and gender identity. The EO asserts that Bostock’s reasoning also applies to other laws, including Title IX, that prohibit sex discrimination.
What does the EO require federal entities to do?
It requires the head of every federal agency (including the U.S. Department of Education) to:
Consult with the United States Attorney General as soon as practicable;
Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions under any statute or regulation that prohibits sex discrimination and determine whether those items are consistent with the EO; and
Within 100 days of the Order, work with the Attorney General to implement an action plan to carry out the actions identified in its review of its policies, programs, guidance, rules, or regulations and that may be inconsistent with the Order’s stated policy.
How are the stated policy and required action different from the past?
The EO’s language stands in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. For example, under the prior administration, the U.S. Department of Education took the position that Bostock’s reasoning did not apply to Title IX and specifically reaffirmed its position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms based on biological sex, rather than gender identity.
In fact, the prior administration issued correspondence explicitly disagreeing with how two federal circuit courts interpreted Title IX. In Grimm v. Gloucester County School Board and in Adams v. School Board of St. Johns County, the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and Eleventh Circuit (covering Alabama, Florida, and Georgia) held that public school students have the right, under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, to use bathrooms consistent with their gender identity. The Eleventh Circuit, in particular, relied on Bostock to interpret Title IX’s prohibition against sex discrimination.[2] The new EO rejects the previous administration’s assertion that the Bostock decision does not apply to agency interpretation of Title IX.
While the EO does not specifically rescind any specific order or action, its broad mandate that agencies review existing programs and policies likely will lead to updated guidance, enforcement priorities, and rules implementing Title IX and other laws prohibiting sex discrimination.
What should schools do now?
The current administration will likely implement major changes related to discrimination on the basis of sexual orientation or transgender status. This may include requiring schools to allow students to use bathrooms and locker rooms that are consistent with their gender identity, and to play on athletic teams that are consistent with their gender identity. Additionally, schools can expect more robust federal agency investigation of complaints of discrimination based on gender identity and sexual orientation.
In light of Bostock, all schools subject to Title VII of the Civil Rights Act should ensure that their employment policies prohibit discrimination on the basis of sexual orientation and gender identity, in conformity with Bostock. In addition, all colleges and universities, as well as all public K-12 school districts, in the Fourth and Eleventh circuits should ensure that their bathroom policies allow students to use bathrooms consistent with their gender identity.
Finally, colleges and universities, as well as public K-12 school districts, should review their practices and procedures to determine how to best support the rights of transgender students in their programs and activities. They should prepare for greater scrutiny at the federal level and be prepared to defend their practices.
President Biden issued Executive Order (EO) on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation on Jan. 20, 2021.[1] While the EO itself is a high level policy statement and does not, in and of itself, immediately change any practices for public school districts, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of transgender and other LGBTQ students.
What policy is asserted in the EO?
The Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” Additionally the EO provides: “[e]very person should be treated with respect and dignity without regard to who they are or whom they love; “[a]dults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes”; and “[p]eople should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.”
The EO bases its reasoning on Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent case of Bostock v. Clayton County, which held that Title VII’s prohibition against “sex discrimination” includes a prohibition against discrimination based on sexual orientation and gender identity. The EO asserts that Bostock’s reasoning also applies to other laws, including Title IX, that prohibit sex discrimination.
What does the EO require federal entities to do?
It requires the head of every federal agency (including the U.S. Department of Education) to:
Consult with the United States Attorney General as soon as practicable;
Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions under any statute or regulation that prohibits sex discrimination and determine whether those items are consistent with the EO; and
Within 100 days of the Order, work with the Attorney General to implement an action plan to carry out the actions identified in its review of its policies, programs, guidance, rules, or regulations and that may be inconsistent with the Order’s stated policy.
How are the stated policy and required action different from the past?
The EO’s language stands in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. For example, under the prior administration, the U.S. Department of Education took the position that Bostock’s reasoning did not apply to Title IX and specifically reaffirmed its position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms based on biological sex, rather than gender identity.
In fact, the prior administration issued correspondence explicitly disagreeing with how two federal circuit courts interpreted Title IX. In Grimm v. Gloucester County School Board and in Adams v. School Board of St. Johns County, the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and Eleventh Circuit (covering Alabama, Florida, and Georgia) held that public school students have the right, under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, to use bathrooms consistent with their gender identity. The Eleventh Circuit, in particular, relied on Bostock to interpret Title IX’s prohibition against sex discrimination.[2] The new EO rejects the previous administration’s assertion that the Bostock decision does not apply to agency interpretation of Title IX.
While the EO does not specifically rescind any specific order or action, its broad mandate that agencies review existing programs and policies likely will lead to updated guidance, enforcement priorities, and rules implementing Title IX and other laws prohibiting sex discrimination.
What should schools do now?
The current administration will likely implement major changes related to discrimination on the basis of sexual orientation or transgender status. This may include requiring schools to allow students to use bathrooms and locker rooms that are consistent with their gender identity, and to play on athletic teams that are consistent with their gender identity. Additionally, schools can expect more robust federal agency investigation of complaints of discrimination based on gender identity and sexual orientation.
In light of Bostock, all schools subject to Title VII of the Civil Rights Act should ensure that their employment policies prohibit discrimination on the basis of sexual orientation and gender identity, in conformity with Bostock. In addition, all colleges and universities, as well as all public K-12 school districts, in the Fourth and Eleventh circuits should ensure that their bathroom policies allow students to use bathrooms consistent with their gender identity.
Finally, colleges and universities, as well as public K-12 school districts, should review their practices and procedures to determine how to best support the rights of transgender students in their programs and activities. They should prepare for greater scrutiny at the federal level and be prepared to defend their practices.
On November 4, the Supreme Court heardoral arguments in Fulton v. City of Philadelphia, the most recent case to address how the First Amendment’s Religious Free Exercise Clause interacts with antidiscrimination laws as applied to religious entities. The case centers on foster care and certification of couples to be foster parents, but the case could have wide-ranging impacts on public accommodation and employment law, especially in the field of government contracts.
When the City of Philadelphia’s Department of Human Services removes children from their parents’ homes, it seeks to place those children temporarily with foster parents. But the city does not find those foster parents itself. Rather, it contracts with private agencies like Catholic Social Services to find suitable foster parents. The private organizations are responsible for doing home visits and the other steps necessary to approve individuals and couples as foster parents, and the city pays them for these services. In 2018, Catholic Social Services admitted to the City that it would not consider any same-sex couples as potential foster parents, which the City concluded was a violation of both its Fair Practices Ordinance and the terms of the contract between the City and Catholic Social Services. Thus, the City stated that it would only renew Catholic Social Services’ contract for certifying foster parents if the organization agreed to consider same-sex couples on the same grounds as opposite-sex couples. Catholic Social Services refused and sued the City, claiming that the City infringed on its right to free exercise of religion under the First Amendment.
The City won in both the federal district and appeals courts, and the Supreme Court agreed to hear the case to answer three questions relating to what a free exercise plaintiff must prove to win a discrimination case, whether the Supreme Court should overturn its prior case Employment Division v. Smith, and what conditions a government agency can place on its contracts with private agencies.
Employment Division v. Smith and the Current State of Free Exercise Law
Employment Division v. Smith, decided in 1990, dealt with two men who were fired from their jobs at a drug rehabilitation center because they had used peyote, which was against state law, and were then denied unemployment benefits since they had been fired for misconduct. But the men had used peyote as part of a religious ceremony, and claimed that the state violated the First Amendment when it denied them unemployment benefits based on their religious use of peyote. In an opinion written by Justice Scalia, the Supreme Court held that the Free Exercise Clause of the First Amendment prohibited governments from singling out religious conduct for regulation, but did not require governments to create religious exemptions from all of its laws. As long as the law was generally applicable to all religious and non-religious individuals alike, and neutral toward religion, meaning not intended to interfere with religious practice, the law met the requirements of the Free Exercise Clause. In other words, as long as Oregon’s peyote ban applied to all citizens, not just members of a certain religious group, and as long as that law was written for a neutral reason like promoting health and safety as opposed to a legislative desire to stop a religious practice, the law was constitutional and could be applied to both religious and non-religious individuals. The fact that the law incidentally infringed on religious practice did not make it invalid.
Congress responded to Employment Division v. Smith by passing the Religious Freedom Restoration Act of 1993, or RFRA. This bill stated that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It introduced a requirement that a person with a religious objection to a law must be exempted from that law unless the government had a compelling interest in passing the law, and the law was the least restrictive means of achieving that goal. This test is known as strict scrutiny, and is very difficult to meet, although religious employers do not always win when they invoke RFRA. For example in Bostock v. Clayton County Georgia, where the Supreme Court held that Title VII prohibits employers from discriminating on the basis of sexual orientation or gender identity, one of the employers had made a RFRA claim which failed in the lower court because Title VII did not substantially burden the employer’s religious exercise and met strict scrutiny regardless. Additionally, many federal circuits only apply RFRA to cases in which the federal government is a party, such as when the Equal Employment Opportunity Commission brings the action to enforce Title VII, but not when a private employee files the lawsuit.
While RFRA originally applied to both state and federal laws, the Supreme Court later said that it could only apply to federal laws. This meant that while federal laws would have to either meet RFRA’s strict scrutiny test or create religious exemptions, state laws only had to meet Employment Division v. Smith’s test that they be neutral toward religion and generally applicable to everyone—or whatever higher standard the state sets for its own laws.
Revisiting Employment Division v. Smith
In Fulton v. City of Philadelphia, both sides argue that they can win under Employment Division v. Smith. The City of Philadelphia argues that its requirements that foster care agencies not discriminate against potential parents based on sexual orientation, as contained in its Fair Practices Ordinance and the service contracts, are generally applicable to all foster care agencies, and have the neutral goal of stopping discrimination as opposed to infringing on religious practice. Catholic Social Services claims that the nondiscrimination provisions are intended to infringe on religious practices, and that they are not generally applied by the city, which allows foster care agencies to consider other protected categories like race and disability in narrow circumstances, but do not provide an exception to the sexual orientation nondiscrimination policy for religious objectors.
But in the event that argument fails, Catholic Social Services also asked the Supreme Court to revisit its decision in Employment Division v. Smith, and to replace that precedent with the strict scrutiny standard established by RFRA. A decision by the Supreme Court that the First Amendment requires religious exemptions from neutral laws of general applicability unless the law is the least restrictive means of serving a compelling governmental interest would not only extend the strict scrutiny test to state and local laws like the Philadelphia Fair Practices Ordinance, it would elevate it from a legislative mandate that any future Congress can overturn to a constitutional holding that only the Supreme Court or a constitutional amendment could undo. It would also go against legislative and judicial history tracing back to our country’s founding, which traditionally indicates that the Free Exercise Clause does not require religious exemptions from neutral and generally applicable laws, as First Amendment scholars argued in an amicus brief, and as Justice Scalia noted in Employment Division v. Smith itself.
Control over Government Contracts
Another dimension of the Fulton v. City of Philadelphia case is that the City is acting not only as a regulator enforcing its Fair Practices Ordinance, but also as a market participant paying—or not paying—Catholic Social Services to perform a vital function on behalf of the city government. And the Supreme Court has stated in various cases that a government has the power to decide how it wants its work to be carried out by private contractors, even if there is some conflict with religious exercise. So, if that principle is followed, even if the Fair Practices Ordinance were required to include an exemption for those who religiously oppose same-sex marriage, the City could still grant contracts for its foster care program only to those organizations that agree not to discriminate against same-sex couples. Catholic Social Services argues that this too would violate the First Amendment, and that governments must grant exceptions to contractors based on honestly held religious beliefs.
Possible Impacts of Fulton v. City of Philadelphia on Employment Law
With a six to three conservative majority on the high Court, it is likely that Catholic Social Services will win this case, although it is far from clear on what ground the Court will base its decision. At oral argument the Justices spent little time asking about whether they should overrule Employment Division v. Smith, which indicates that they may take a more moderate approach such as narrowing the situations in which Smith applies or introducing some sort of balancing test for courts to apply when religious beliefs conflict with nondiscrimination laws. But whatever ground it rules on, the decision is likely to chip away at employment protections for workers in at least some contexts, as the decision will apply not only to organizations discriminating against clients, but also against employers discriminating against employees, based on their religious beliefs.
A full overruling of Smith would mean that all state, local, and federal employment nondiscrimination laws must include exemptions for religious employers based on their firmly held religious beliefs. A ruling that governments must provide such exceptions in their contracts with private entities would allow greater discrimination in a huge portion of the economy. In fiscal year 2019 the federal government entered into nearly six million contracts for services from private entities, spending almost $600 billion on those contracts. The federal, state, and local governments contract with private entities for a huge range of things, from production of military supplies and energy to provision of day care through Head Start and running private prisons. As a group of businesses ranging from tech giants Apple and Google to retailers Macy’s and Levi Strauss argued in an amicus brief, a ruling for Catholic Social Services could create unfair competition for government contracts where employers with religious objections—ranging from entities like Catholic Social Services, which is run by the Archdiocese of Philadelphia, to corporations like Hobby Lobby that are owned by a small number of religious adherents—are not required to comply with all neutral laws, and could make it difficult to recruit employees to locations where those employees might be denied public services by the only government contractor in town. And as 160 members of Congress argued, an expansion of religious exemptions would greatly infringe on Congress’s ability to eradicate discrimination, especially in the contracts it funds through taxpayer money.
And as the City of Philadelphia stressed at oral argument, these exemptions for religious employers and service providers would not only pertain to sexual orientation discrimination. Rather, religious entities would be allowed to discriminate against employees and clients based on any sincerely held religious belief, including beliefs about the superiority of certain religions, genders, or races. And while everyone was in agreement that the government has a compelling interest in eradicating racial discrimination, meaning that a ban on race discrimination would pass strict scrutiny against religious objections, the attorneys representing Catholic Social Services would not state whether the government had a compelling interest in eradicating other forms of discrimination, a question that is less clear from prior Supreme Court cases. The Supreme Court’s decisions on the “Ministerial Exception” already allow religious employers to discriminate on any grounds against those employees they consider ministers, such as teachers in a Catholic school who play a role in spreading the faith, but this decision could expand the license to discriminate beyond those who qualify as “ministers.” The Supreme Court explicitly declined to address the employer’s religious objections to Title VII in Bostock v. Clayton County, Georgia, but a ruling in Fulton could fill in that gap now that the question of religious objections to neutral laws is properly before the Court.
Decisions from the Supreme Court involving LGBTQ rights typically come out at the end of the term in June, but the Court’s decision could be published any time between now and then.
On October 20, 2020, the Office for Civil Rights (“OCR”) settled two religious discrimination complaints involving access to clergy during the Public Health Emergency. Both complaints arose from a hospital’s failure to permit visits by religious clergy due to COVID-19 visitor restrictions. In the first complaint, a COVID-19 positive new mother requested that a priest visit her newborn son and baptize him. Due to its restrictive visitor’s policy, the hospital refused. In the second complaint, a priest was denied ICU access in order to provide Catholic religious sacraments to an end-of-life patient.
In connection with resolution of the complaints, OCR provided technical assistance and guidance to the hospitals in order to strike a balance between protecting the hospital’s staff, visitors, and patients and respecting the patient’s right to religious support. OCR approved the following requirements for visiting clergy:
Visiting clergy must follow all safety policies put in place by the hospital, including COVID-19 screening protocols;
Visiting clergy must adhere to proper infection prevention practices, such as hand washing, physical distancing and wearing a mask;
Visiting clergy must complete infection control training;
Visiting clergy must use fit-tested Personal Protective Equipment (“PPE”);
Visiting clergy must sign an acknowledgment of the risks associated with visiting a patient who tested positive for COVID-19; and
In urgent end-of-life situations, an exception to the controls listed above may be made but visiting clergy must self-quarantine for 14 days following the visit.
Hospitals are encouraged to review their visitation policies for compliance with a patient’s right to religious support.
Nearlyone-third of transgender individuals experience homelessness at some point in their life, and 70% of those who have stayed in a homeless shelter have reported some form of mistreatment, including harassment and refusal of service, due to their gender identity. Transgender individuals are significantly more likely to end up homeless than the general population because they often face rejection by their family members and discrimination in employment and housing. The levels of discrimination and income inequality are even higher for transgender women of color, and the COVID-19 pandemic has further exacerbated the rates of unemployment, poverty, and homelessness among the transgender population.
On September 22, 2020, pro bono attorneys filed a public comment letter on behalf of The National LGBT Bar Association and Foundation urging the withdrawal of a Proposed Rule issued by the U.S. Department of Housing and Urban Development (HUD) that would severely harm homeless transgender, intersex, and gender nonconforming individuals by allowing federally funded homeless shelters to discriminate against them on the basis of their gender identity. The Proposed Rule would eliminate key non-discrimination protections previously afforded to transgender shelter-seekers under HUD’s 2016 Equal Access Rule and would permit single-sex shelters to turn away transgender, intersex, and gender nonconforming individuals if the shelter operator determines that the individual is not of the same “biological sex” as the other shelter residents.
The Proposed Rule is premised on the medically and legally indefensible presumption that an individual’s sex can be determined solely on the basis of their external physical characteristics. In reality, an individual’s “biological sex” is complex, multi-faceted, and primarily determined not by external physical characteristics, but by an individual’s gender identity—which is sometimes referred to as one’s “brain sex.” The Proposed Rule’s reduction of “biological sex” to physical sex stereotypes such as “height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics,” would not only result in discrimination on the basis of gender identity and transgender status, but would also enable single-sex shelters to arbitrarily provide or deny shelter based solely on a shelter worker’s assessment of whether an individual appears sufficiently “male” or “female” enough to enter. Denying shelter to transgender, intersex, or gender nonconforming individuals on the basis of such physical sex stereotypes constitutes a type of gender discrimination that numerous courts have found unlawful.
HUD’s justifications for the Proposed Rule are rooted not in fact, but in transphobia and harmful gender stereotyping. HUD claims that the Equal Access Rule burdens faith-based shelter providers, but provides no evidence of this. HUD also claims that the Proposed Rule is necessary to protect the privacy and safety of cisgender (that is, non-transgender) shelter residents, again with no evidence that the Equal Access Rule has resulted in any harm to these residents. Rather, HUD posits a hypothetical fear that “non-transgender, biological men” may pretend to be transgender women “to obtain access to women’s shelters” where they will harm cisgender women. In so doing, HUD perpetuates what courts have identified as the “transgender predator myth,” a harmful, false, and unsubstantiated belief that laws protecting the rights of transgender people to access public accommodations such as restrooms will cause cisgender men to pose as transgender women to enter women’s facilities and assault cisgender women.
If enacted, the Proposed Rule will present transgender, intersex, and gender nonconforming individuals with the untenable “choice” of either being placed in a homeless shelter inconsistent with their gender identity or sleeping on the street. Those who opt for shelter at a single-sex facility that does not match their gender identity will be subjected to the psychological trauma of being misgendered and will face the high risk of physical violence that has been documented in various settings in which transgender people have been forced into facilities inconsistent with their gender identities. Those who opt to go unsheltered will also face a serious risk of harm, as studies have found as many as 66% of homeless transgender individuals have experienced a physical assault, and 33% have experienced sexual violence. While a staggering 47% of transgender people report being sexually assaulted during their lifetime, the number climbs to 65% among transgender individuals who have experienced homelessness. These grim statistics are symptomatic of a growing epidemic of violence against transgender individuals, as recent FBI data shows hate crimes against transgender people are on the rise.
We are proud to support The National LGBT Bar Association and Foundation in challenging this Proposed Rule and championing the rights of transgender, intersex, and gender nonconforming people who need access to emergency shelter. HUD must protect homeless transgender individuals, who are among the most vulnerable members of the LGBTQ community, by ensuring that homeless shelters provide them with safe and equal access in accordance with their gender identities.
To read the public comment letter in full, click here.
Plans are underway in multiple cities across the country for employees to participate in a Strike for Black Lives on Monday, July 20. The initiative encompasses the efforts of Black Lives Matter, the Movement 4 Black Lives, and a union-organizing effort by the Service Employees International Union. Strike for Black Lives encourages employees to “rise up for Black Lives” by walking off their jobs to march; and for those who can’t march, to take an “8:46 Pledge” in recognition of the death of George Floyd. The 8:46 Pledge asks supporters to take 8 minutes and 46 seconds at noon on July 20 to either take a knee, walk off the job, or observe a moment of silence.
Challenged by the threats of COVID-19, economic uncertainty, and now striking employees, employers should be prepared. As a reminder, the National Labor Relations Act (NLRA), which governs both union and non-union workplaces, protects most private sector employees who engage in concerted, protected activities to object to working conditions or terms of employment. On the other hand, employees who miss work without a good reason or for one’s own personal grievances may be subject to companies’ regular policies. Regardless, it is prudent for employers to proceed with caution in taking action against employees who join the Strike for Black Lives. If you have questions or doubts, consult with counsel.
Meanwhile, the Strike for Black Lives and similar events present opportunities for businesses to bolster their commitments to diversity and inclusion beyond standard statements of support. A recent Harvard Business Review article outlines recommendations for employers standing against racism. Others suggest allowing time off on short notice for last-minute marches and demonstrations. Showing flexibility in the application of company policies reflects a willingness to identify with employees’ concerns and reinforces a business’s own support for racial justice.
Although the convergence of extraordinary events in 2020 presents challenges for employers, in the words of John Adams, “Every challenge is an opportunity in disguise.”
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.
As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond?
As a practical matter, employers must be aware of the application of Constitutional free speech protections, employee rights under the National Labor Relations Act and state laws that may apply to expressive employee conduct, as detailed in our previous post.
Beyond that, employers can choose the level of their response and engagement, or choose to do nothing at all—there is no right or wrong answer or a “one size fits all” solution. The most common reaction from employers is to acknowledge the unrest and issue a statement of support. Many employers have also chosen to make a public announcement expressing solidarity and support of the Black Lives Matter movement.
Though these responses are important, they fail to accomplish the more ambitious goal of many employers, which is to articulate and implement a strategy for lasting and real change within their own workplace and beyond. This action requires substantial reflection, consideration, time and effort.
So, for employers looking to do more, where do they start?
Leadership: Good leaders serve as good models. Leaders can lead by example and provide a safe workplace where all employees feel respected and included. As it pertains to the current environment, leaders can be open about their own lack of knowledge and share their growth and experiences with their workforce.
Anti-Discrimination Policies: Employers can review their policies regarding equal employment opportunity and workplace discrimination. Though most employers articulate such policies as a matter of course, it is important to reinforce these policies and remind employees of what is expected of them and to reassure employees who may be feeling vulnerable at this time.
Diversity Initiatives: Employers can focus on building diversity within their ranks by ensuring that recruitment, hiring, retention and advancement are truly objective and based on merit. Employers can also consider implementing a version of the National Football League’s recently-revised “Rooney Rule,” wherein at least two non-white candidates must be considered for open head coaching positions, and one non-white candidate must be considered for coordinator, senior football operations or general manager positions. Forming a diversity committee or task force is another way to ensure that minority members of your workforce are being heard and understood by management.
Awareness: Employers can educate their employees about prejudice and racism in its various forms; this can consist of formal training or open forums in which employees can communicate with one another and, importantly, with their co-workers of color. Employers can also make educational materials available for employees.
Community Involvement: Employers can publicly support the movement in the form of donations or activism. Doing so can create a sense of pride among your workforce, and it can also help in attracting future hires that share the principles of your workplace.
The legal industry continues to respond to larger forces in society, and along with our usual focus on law firm moves, hires, and accolades, we take a look at the specific ways law firms are pledging to combat racism and fight for social justice in their communities and across the country.
Law Firm Moves, Hires and Recognitions
Down in Texas, Erin England joined Katten’s Dallas office as a partner in the firm’s commercial finance practice. England represents alternative lending institutions and banks in negotiating and structuring domestic and international commercial transactions. She also has experience in the real estate finance industry, representing lenders and borrowers in real estate and construction loans involving retail space and industrial properties.
“In the last two years, we’ve added leading attorneys like Erin in key growth areas such as commercial finance,” said Mark S. Solomon, managing partner of Katten’s Dallas office. “As an active member of several organizations committed to the hiring, retention, and promotion of diverse lawyers, Erin also shares in Katten’s deep commitment to diversity and inclusion, which is a fundamental part of the culture in our Dallas office.”
Michael Gaston-Bell of Katten
Also joining the Katten Dallas is Michael Gaston-Bell, who is the first labor and employment attorney in the firm’s Dallas office. His previous experience includes representing clients on Title VII, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) workplace matters in state and federal court, and working with corporate leadership on complex and often crisis level employment issues, including internal investigations, unfair competition and major transactions in health care, entertainment, banking, military contracting and retail industries.
“Michael is a talented attorney who will offer our clients in Dallas and across the country exceptional employment litigation counsel,” said David Crichlow, national chair of Katten’s Commercial Litigation group. “He has the skills to succeed and a track record for being a true advocate of his clients who often face tough, complicated issues.”
Katten opened the firm’s Dallas office with seven partners in 2018 and has grown to over 40 attorneys in the past two years.
George Howard joined the Restructuring & Reorganization practice of Vinson & Elkins (V&E) in their New York City office as a partner. Howard represents distressed debt investors, asset purchasers, companies, banks and secured lenders in out of court restructurings, chapter 11 reorganizations, distressed M&A, cross-border insolvency proceedings, and secured financing transactions.
“We are focused on growing the firm’s restructuring team particularly to meet increasing client demand for company and debtor side representations,” said V&E managing partner Scott Wulfe. “George is a great addition to the team not only because of his significant debtor experience, which perfectly complements our existing strengths but also because he is a natural team player and a great cultural fit for V&E.”
Matt Jones Ropes & Gray
Ropes & Gray’s Chicago office added Matthew (Matt) R. Jones to the firm’s employment, executive compensation, and benefits practice group. Jones advises private equity firms and their portfolio companies on executive compensation in relation to complex commercial transactions. Jones also advises clients on Securities and Exchange Commission executive compensation arrangement reporting obligations.
“We are very excited that Matt has joined the firm,” said global private equity practice co-chair Neill Jakobe. “Chicago is a priority market for our clients and our firm, and it is critical that we continue to attract the top talent in this market. Matt is an exceptional fit from a strategic and cultural perspective and he will further enhance the value we deliver to our clients locally, and globally.”
Christopher Passodelis Jr., James M. Sander, Brandon T. Uram and Megan L. Tymoczko-Korch joined Steptoe & Johnson PLLC, working remotely from the firm’s Southpointe office in Canonsburg, Pa., with plans to move to the downtown Pittsburgh office this fall. All four attorneys practice in the firm’s Business Department, handling business transactions and corporate services and tax. Uram focuses his practice on transactions and business litigation.
“Chris, Jim, and Megan bring an entrepreneurial spirit and many decades of diverse experience representing businesses large and small to our firm. Brandon is a creative and fierce advocate for clients who are faced with litigation,” said CEO Susan S. Brewer. “As Steptoe & Johnson grows its presence in western Pennsylvania, they will play a key role in helping us meet our clients’ needs.”
Immigration attorney Sarah Hawk joined Barnes & Thornburg (B&T) as a partner, along with Of Counsel Terra Martin and Paralegal Elizabeth Wei. She has 20 years of corporate immigration experience representing universities, corporations, and individuals, and leads the firm’s Southeastern immigration practice.
“In this critical time, we couldn’t ask for a better resource for our clients than Sarah,” said B&T’s labor and employment department leader Kenneth Yerkes. “COVID-19 has complicated many employees’ immigration statuses, whether it stems from remote work, reductions in force, border closings or shortened internship programs.”
David F. Johnson of Winstead was named to the Board of Directors for the Texas Board of Legal Specialization (TBLS). Established in 1974, the TBLS is a certifies lawyers and paralegals in their specific area of law, bestowing certification upon demonstration of expertise, after passing a rigorous exam and demonstration of completion of CLE continuing education credits. Out of 110,000 attorneys licensed to practice in Texas, only 7400 are board-certified. Johnson, who writes extensively on Fiduciary law in Texas, is also Board Certified in Civil Appellate Law, Civil Trial Law, and Personal Injury Trial Law. He will serve a three-year term on the TLBS beginning July of 2020.
Law Firm Contributions to Social Justice
Law firms have responded in a variety of ways to the recent protests, civil upheaval, and calls for change surrounding the murder of unarmed minorities at the hands of police. Many law firms announced Juneteenth observances, and encouraged their employees to use the day as a chance to reflect on how to best encourage tolerance and justice in their lives and through their legal work.
Below is a sampling of some initiatives, pro-bono efforts, and other steps towards positive change announced by law firms.
One thousand attorney law firm BakerHostetler announced the firm’s intention to develop firm-wide plans to become a more “inclusive, diverse and successful place to work and thrive.” The firm announced plans to partner with civil and human rights organizations to develop an environment welcoming of honest conversations about race and discrimination, as well as resources to educate firm-wide to effect change. As an initial step, the BakerHostetler Foundation is donating $100,000 to the Equal Justice Initiative, a non-profit dedicated to justice, ending mass incarceration and police reform. Along with the donation, BakerHostetler acknowledges “like many other law firms, we have work to do to increase diversity among our attorneys and leadership, and we will not stop working to address these issues.”
A global law firm focused on technology and innovation, Orrick has also announced plans to advocate for racial equality and diversity in the legal industry. Along with increased resources devoted to the firm-wide pro-bono program, Orrick Cares, Orrick has also announced the Orrick Racial Justice Fellowship Program. This program will allow at least five attorneys within the firm to devote a year each to focus on social justice and civil rights issues.
Additionally, two associates with Orrick, Tatyanna Senel and Yasmina Souri rallied almost 1,000 attorneys to provide pro-bono representation to protesters in Los Angeles. Senel and Souri helped formalize a working relationship between Orrick and the National Lawyers Guild, an established bar association with a mission of using the power of the law for the people, by bringing together lawyers, law students, legal workers and jailhouse lawyers to work together on a wide spectrum of issues, and create change on the local, regional, national and international levels. The National Lawyers Guild (NLG) is one of the most progressive bar associations in the country, as well as one of the oldest, and the first to be racially integrated. Additionally, Senel and Souri activated their own networks to rally friends and colleagues to the cause. Senel says, “We’re [Senel and Souri] both passionate about the message, and we felt like there was something we could do with our law degrees.”
According to the LA Times, almost 3,000 protesters were arrested in Southern California during the upheaval surrounding George Floyd’s death. Through this partnership, NLG is able to deploy almost 1,000 attorneys with varying levels of expertise to provide legal defense to protesters arrested. Criminal Defense attorneys will handle the more complex matters, while attorneys with limited or no experience in criminal law will handle lower-level issues, like curfew violations. Additionally, the volunteers will provide training on how to act as a legal observer.
Wiggin and Dana LLP, in response to racial inequalities brought to the forefront by recent events, has announced the Wiggin Opportunity Initiative, a pledge to provide $10 million in pro-bono legal services to minority-owned businesses over the next decade. Managing Partner, Paul Hughes, said, “While born of current events and frustrations, the firm wants to do something that will outlast the spotlight of this particular moment and support long-term improvement in opportunity and equality in our communities. By leveraging the particular skillset of our sophisticated lawyers in a sizeable, sustained and focused effort over time, we hope to make real change in a way that we could not achieve by more modest, incremental efforts.”
The next step in the initiative is to identify, through collaboration with community partners businesses that could benefit from the initiative. The legal services will be available across a variety of practice groups in order to meet a variety of needs in the business community. With a ten-year commitment, the firm is hoping to develop long-term relationships with the minority businesses to form partnerships to amplify the success of the businesses, to best impart lasting change on the landscape.
WilmerHale is a full-service, international law firm with 1,000 attorneys is focusing their racial equality efforts on police reform. WilmerHale announced their intention to donate at least a quarter of a million dollars to organizations working on police reform efforts, and select two fellows to work with civil rights groups addressing issues related to systemic racism, criminal justice and holding police accountable.
Focusing on WilmerHale’s proven track record in Police Department Counseling, the firm has established a pro bono client initiative focusing on police reform and social inequities affecting minorities, focusing on police accountability—using WilmerHale’s long-standing expertise in advising police departments in Baltimore and Chicago under Department of Justice (DOJ) investigation to assess practices and bolster public safety by helping departments adopt best practices. WilmerHale indicates these steps are just the beginning, saying: “These are our initial steps in our efforts to ensure meaningful change. We plan to build on and expand this work.”
Many law firms have announced their intention to contribute financially as well as look internally and find ways to make their own workplaces more inclusive, by formalizing initiatives to increase diverse attorney representation across the industry. In fact, to further this goal, over 125 law firms have joined the Law Firm Antitracism Alliance, with the purpose of:
. . . leveraging the resources of the private bar in partnership with legal services organizations to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law.
Through coordination of Pro-bono efforts, law firms will partner with legal services organizations to “identify and dismantle structural or systemic racism in the law.”
Akin Gump, wrote an amicus curiae brief on behalf of the respondents, in conjunction with the American Historical Association, the Organization for American Historians and the Fred T. Korematsu Center for law and Equality, along with over 40 individual historians, supporting the legal challenge to the Trump Administration’s decision to rescind the DACA program. The brief looks at the historical context of decisions such as these, with a focus on the coded language and implicit bias used by the government to support policies. The brief indicates, in part:
. . . [A]mici seek to ensure that this Court understands the ways in which racially coded language has been used by government actors, both past and present, to mask illicit discriminatory motives—particularly in the immigration context, including the rescission of DACA.
Pratik Shah, co-head of Akin Gump’s Supreme Court and appellate practice, pointed out that many DACA recipients have only ever known the United States as their home, and all who earn DACA protection had done so by furthering their education or serving in the military. He says, “The Court’s decision that the administration cannot arbitrarily upend the lives of hundreds of thousands who arrived in our country as children . . . is a victory for both the rule of law and common decency.”
A new in-depth report from the American Bar Association, Left Out and Left Behind: The Hurdles, Hassles and Heartaches of Achieving Long-Term Legal Careers for Women of Color, draws on data and interviews to tell the story of what life is like for women lawyers of color. The report, authored by social scientist Destiny Peery, past ABA president Paulette Brown and Chicago attorney Eileen Letts, demonstrates why, despite increased efforts by firms and the profession generally, to improve diversity and inclusion, women of color continue to face barriers to advancement and are much more likely than white women counterparts to leave the profession.
This report is essential reading for any law leader who is serious about making true substantive changes that will improve the retention and advancement of women of color — particularly those leaders whose firms are posting “Black Lives Matter” messages in internal communications and on social media channels. Becoming an antiracist law firm does not end with a slogan or “messaging” — it requires an honest examination of formal and informal policies and practices, and a reckoning with the impact of those policies on lawyers of color. Then it’s time to reimagine how your firm runs to make sure opportunities are fairly distributed.
While it’s very important to hear and sit with the stories individual lawyers share from their experience of implicit and explicit bias, if I know my audience of driven, task-oriented marketers and communicators, you will be skipping to the end, where the report recommends next steps for firms that want to take action. Below I outline those general recommendations, and then consider the role of the marketing department in helping to make them a reality.
Adopt Best Practices for Reducing Biases in Decision-Making. “[P]revious research that has shown that high levels of subjectivity in promotion standards, selection for assignments, compensation decisions, and performance appraisals are often colored by stereotypes and serve as institutional and structural barriers to the advancement of women of color and other underrepresented attorneys.”
What Marketers Can Do: How does your department determine which partners receive marketing and communications support as they work to build their business? Is there a way to distribute those resources — help with individual lawyers’ social media channels, assistance writing and placing thought leadership, nominations for awards and key boards of directors — more fairly to elevate your firm’s diverse attorneys? How can you help advise up-and-coming partners on which opportunities will be the best use of their limited time and make the biggest impact on their business development?
Improve Access to Effective, Engaged Mentors and Sponsors. “[W]omen of color are especially likely to report that they lack access to mentors or sponsors who are well-connected and have power and influence to both clue them into important dynamics of the workplace and effectively advocate for them.”
What Marketers Can Do: Marketers have a great opportunity to help create mentorship and sponsorship relationships through the business development and proposal-writing process. By now, most rainmakers and practice leaders understand that business clients demand to be served by diverse teams. So they’re being thoughtful about including diverse attorneys in pitch decks and other materials. You can help move that inclusion to the next level by adding a follow-up communication step to your BD process in which all named/pictured team members de-brief and offer feedback. This is a simple way to build a platform upon which younger and diverse attorneys can demonstrate their value in front of the senior partners who can shape their career opportunities. In addition, you can use channels like the internal firm newsletter to educate more senior partners on how to effectively advocate for diverse attorneys — and, in doing so, help the firm stand out as a leader on an issue that matters very much to clients.
Take an Intersectional Approach to Addressing Diversity and Gender. “[B]lindness to or ignorance of the ways that gender and race (as well as other social identities) can interact to create distinct experiences” has so far limited what firms have been able to achieve. Firms must acknowledge that, while they are still disadvantaged, white women’s careers develop differently because of their access to privilege. They navigate networking differently, are viewed differently by colleagues, clients, and judges, and receive distinct treatment when it comes to work distribution and performance evaluation.
What Marketers Can Do: Take a look at how you use words like “diversity,” “equity,” and “inclusion” in internal and external firm communications. Do you grapple with intersectionality — that is, the way that experiences of race and gender (and class and sexuality and ability) intersect for your attorneys — in your messaging? Are there ways that your “diversity” initiatives and communications erase the experience of women who are not white? How could you make changes to address this issue?
“[O]ur participants mentioned again and again the myriad ways that the culture of the legal profession interfered with their abilities to succeed, to feel valued, and sometimes to persist in the legal profession.”
What Marketers Can Do. So much! 1) Take a look at your firm’s (pre-Covid, in-person) events. Where are they typically held? Do you always choose locations and activities that are most comfortable for wealthy white men? How might you change things up? 2) Does your firm have a written editorial style guide? If so, does it include a section on inclusive language so that everyone knows how to use language in the most inclusive ways possible? 3) If your intended audience for your internal firm communications is “everyone,” are you sure your language and framing actually accomplish that goal, or are you unintentionally treating a white reader as the default? 4) What other unexamined policies, practices, habits and conventions may implicitly communicate to diverse partners that they don’t fully belong? Learning how to spot potential for “othering” and exclusion in communications and other marketing activities is an important skill your department needs to teach its junior members and encourage them to practice.
True change that makes law firms into more equitable and inclusive workplaces for all lawyers must happen on both the systemic and individual levels. While many of the most sweeping and necessary changes are out of the hands of junior and senior legal marketers, there are plenty of things we can do within the scope of our influence that will make a difference. And the time to start is now.
