Does the EEOC Really Get to Decide Whether RFRA Applies in Employment-Discrimination Lawsuits?

Published September 21, 2021

National Review Online

Earlier this month, a federal district court in North Carolina rejected Charlotte Catholic High School’s religious defenses against a Title VII claim of sex discrimination allegedly based on an employee’s sexual orientation. The case, Billard v. Charlotte Catholic High School, was brought by Lonnie Billard, a male substitute drama teacher, who was fired “for his support of gay marriage” (contrary to Catholic doctrine) after he posted on Facebook about his upcoming civil marriage to another man.

The religious school was not willing to employ teachers who openly oppose Church teachings the school is responsible for imparting and modeling to its students. Indeed, the high school’s Catholic school system was consistent in its treatment of employees who openly flouted the Catholic Church’s teachings on marriage and sexual relations, whether or not they were homosexual. This included dismissing a male teacher for having an extra-marital affair, a male teacher for adopting a child with his same-sex partner, and a female teacher for planning to marry a divorced Catholic man who did not secure an annulment of his prior marriage from the Church.

The Catholic school argued that the Religious Freedom Restoration Act (RFRA) protected its right to select and employ substitute teachers who do not engage in conduct or publicly advocate positions contrary to Church doctrine. RFRA was passed in 1993 with overwhelming bipartisan support and signed into law by President Bill Clinton in the wake of the Supreme Court’s 1990 Employment Division v. Smith case that gutted First Amendment Free Exercise Clause protections. Under RFRA, the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The district court in Billard held that “RFRA does not apply to suits between purely private parties,” such as the one between Billard and Charlotte Catholic High School, citing several circuit and district courts that held RFRA’s protections are only available if the federal government is a party. The district court, however, noted that the Fourth Circuit, which handles appeals from North Carolina federal district courts, has not yet decided the issue.

The dispute over when RFRA applies is based on how best to interpret the statutory text. The Billard court (and others) point to two phrases. First, RFRA permits a person whose religious exercise has been burdened to raise a claim or defense “in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). Second, a burden on religious exercise is permitted only if the government demonstrates a compelling interest achieved by the least restrictive means. “Demonstrates” is defined as “meet[ing] the burdens of going forward with the evidence and of persuasion.” Taken together, both of these phrases, according to the court, contemplate a scheme only where the government is a party, presenting evidence and argument in court and against which relief must be obtained.

The other side points to RFRA’s sweeping language. RFRA “applies to all Federal law, and the implementation of that law.” “Government” includes any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Its stated purposes are “to provide a claim or defense to persons whose religious exercise is substantially burdened by government” and to apply “in all cases.” Notably, defenses do not provide relief against the government (or otherwise). They merely defeat liability or the application of the law to the defendant.

Who is burdening Charlotte Catholic High School’s exercise of religion: Billard or the government? Here, it is the government in the form of potential court enforcement of Title VII liability. In response to that burden, the school raised an RFRA defense, claiming there was no compelling government interest in forcing it, under penalty of court sanctions and court-awarded damages, to retain teachers who publicly oppose Catholic teachings on marriage.

Ironically, the very case that gave Billard his cause of action — Bostock v. Clayton County — specifically described RFRA as a “super statute” that “might supersede Title VII’s commands in appropriate cases.” Yet Billard failed to address the Supreme Court’s pronouncement, which calls into question the pre-Bostock RFRA cases the court relied on. What are “appropriate” Title VII cases if not teachers at religious schools?

Under Billard’s reasoning, if the Equal Employment Opportunity Commission (EEOC) — the federal agency charged with enforcing Title VII and other laws prohibiting employment discrimination — had sued on behalf of the teacher, RFRA would be available as a defense.

To bring a Title VII claim in federal court, an employee (or applicant) must first file a charge of discrimination with the EEOC. The employer is required to issue a position statement in response and will often include any applicable defenses. If the EEOC finds that reasonable cause exists for the employee’s discrimination claim, the EEOC will try to conciliate the case with the employer, at which point an employer claiming an RFRA defense would likely raise it. If the case does not settle, the EEOC would choose either to file a lawsuit against the employer or issue a notice of right sue to the employee (a necessary step before employees can sue on their own in federal court under Title VII).

Consider three different scenarios, all of which involve the same claim of employment discrimination against a religious employer.

  1. EEOC sues on behalf of the employee.
  2. EEOC sues and the employee intervenes as a private-party plaintiff.
  3. EEOC issues a notice of right to sue, and the employee sues as a private-party plaintiff.

According to Billard, the religious employer could raise an RFRA defense in the first two scenarios, but not the third. Notably, there is no suggestion that the RFRA defense applies unequally in mixed-party suits, such that RFRA would apply only to the federal government and not to the private-party plaintiff.

But can an employer’s rights to religious freedom and an employee’s rights to nondiscrimination really be a function of which party sues on behalf of the alleged injured employee? Or more specifically, whether the EEOC sues?

Under Billard, if the EEOC brings or intervenes in a lawsuit on behalf of an employee, and the court recognizes an RFRA defense, then the employee loses the nondiscrimination claim. But if the EEOC declines to bring a lawsuit where the religious employer could have brought a successful RFRA defense, then the employer loses its rights to religious exercise. That can’t be right. Otherwise, the EEOC could put its thumb on the scales and purposely avoid becoming a party in lawsuits against religious employers to deprive them of a potentially winning RFRA defense.

Instead, RFRA should be available “in all cases” as a defense whenever the government substantially burdens religious exercise through “all Federal law, and the implementation of that law” — regardless of whether the government is a party to the lawsuit. After all, it is the federal courts themselves that would ultimately impose the substantial burdens on religion — here, in the form of Title VII liability and damages as the district court held.

Rachel N. Morrison is an attorney and policy analyst at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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