EEOC’s ‘Gender Discrimination’ Campaign and Crusade against Religious Employers

Published September 27, 2023

National Review Online

On August 9, 2023, Kalpana Kotagal was sworn in as the fifth commissioner of the Equal Employment Opportunity Commission‚ the federal agency tasked with preventing and remedying employment discrimination. Kotagal’s confirmation filled the slate of commissioners and tilted the commission 3–2 in favor of Democratic appointees, resulting in controversial guidance, lawsuits, and amicus briefs promulgated by the commission.

On September 8, the EEOC filed one such amicus brief in the Seventh Circuit case Garrick v. Moody Bible Institute.

Janay Garrick sued her former employer, Moody Bible Institute — named after early-20th-century evangelist Dwight L. Moody — after it did not renew her teaching contract. Garrick admits that she rejected Moody’s core religious doctrine (despite having repeatedly signed employment contracts stating that she fully affirmed it) and in fact advocated against those religious beliefs on campus. But she claims that since Moody’s beliefs and related practices concerned sex-based limitations on the clergy, Moody’s actions constituted sex discrimination under Title VII of the Civil Rights Act of 1964.

Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Remarkably, in this case that does not involve gender-identity issues, the EEOC’s brief is replete with references to “gender discrimination” — a term that appears nowhere in Title VII or the other employment-nondiscrimination laws the EEOC enforces. Yet in its brief, the EEOC uses the term “gender” instead of “sex” more than 15 times (not counting direct quotations). In contrast, the word “sex” appears only nine times, mostly discussing case law and in direct quotations from the text of Title VII.

Why would the EEOC, the government agency tasked with enforcing sex discrimination, talk instead about gender discrimination?

It appears that the agency is undertaking an intentional, ideological campaign to amend Title VII through repeated misquotation.

This campaign aligns with the commission’s overt expansion of the Supreme Court’s decision in Bostock v. Clayton County. In that case, the Court held that under Title VII’s sex-discrimination prohibition “employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Notably, in its holding, the Court did not use the terms “gender” or “gender identity” — a broad term that encompasses many situations beyond transgender status. Further, the Court expressly did not decide ancillary issues outside the hiring/firing context, such as the use of “bathrooms, locker rooms, or anything else of the kind.”

Nonetheless, on its website, the EEOC relies on Bostock for the agency’s pronouncement that Title VII “forbids sexual orientation and gender identity discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment” (emphasis added). The EEOC is using the Bostock decision as an opportunity to reassert the agency’s position that “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”

(The Democratic EEOC chairwoman also unilaterally issued “technical assistance” in June 2021 similarly elaborating on “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” but that guidance was declared unlawful and vacated by a court for violating the Administrative Procedure Act, Title VII, and the EEOC’s own regulations. The court held that the EEOC “misread Bostock and overstate[d] Supreme Court and Title VII jurisprudence to conflate protected class status with all correlated conduct — in direct contravention of Justice Gorsuch’s majority opinion deferring ‘future cases’ involving dress codes, bathrooms, pronouns, and healthcare.”)

However, perhaps more important than these vocabulary gymnastics is the question of why the EEOC is involved in this case in the first place? It is not a case the EEOC brought. This case is on interlocutory appeal from a district-court decision dismissing Moody’s religious defenses.

Moody is seeking resolution of its religious defenses before it has to undergo incredibly intrusive and religiously entangling discovery over the plausibility and strength of its religious beliefs, in addition to the enormous expenditures of time and money needed to litigate the underlying employment-discrimination claims.

One would think the EEOC would favor quick resolutions of religious defenses. If Moody was acting within its religious purview, the government should be glad to avoid entangling itself in religious matters that are none of its business. In fact, that’s precisely what a group of 17 states explained to the court in support of Moody. If Moody’s religious defenses were vindicated only after a lengthy litigation process, Moody and Garrick would lose financially and court resources would be expended. And not only would Moody lose a crucial part of the liberty that the First Amendment guarantees, but the government itself would violate its constitutional obligation to avoid entanglement in religious disputes.

However, instead of respecting that obligation, the EEOC filed an amicus brief urging the Seventh Circuit to dismiss Moody’s appeal, arguing that Moody’s religious defenses should not get appellate review until after all the other underlying claims are litigated in the district court. Rather than being a true “friend of the court,” the EEOC is simply being an enemy of religion.

As a taxpayer-funded government agency, the EEOC should be neutral, objective, and fair. It should favor, or at least it should not deliberately frustrate, litigation economy.

For employers like Moody Bible Institute, the process is the punishment. Religious organizations have a right to make their own internal faith-related decisions without intrusive, entangling second-guessing by courts and the EEOC. Many employers, especially nonprofit religious organizations, do not have the resources to fight prolonged litigation. Every minute and dollar spent on attorneys’ fees is a minute and a dollar less that the organization can spend on its religious mission. The lesson religious employers learn from prolonged litigation over religious issues is that even if the employers are fully protected by First Amendment, they can’t afford the entanglement and expense of litigating to a conclusion. The EEOC knows this full well.

A recent amicus brief supporting the (unfortunately unsuccessful) petition for certiorari in Faith Bible Chapel International v. Tucker — another case involving an interlocutory appeal of religious defenses to employment-discrimination claims — highlighted many of these concerns.

The brief, filed by Hunton Andrews Kurth LLP on behalf of the authors here, argued that the First Amendment “is ineffective if it does not protect religious organizations from investigation or suit over employment decisions involving their ministers.” We explain that, in practice, the First Amendment’s protection for religious autonomy is effective only if it provides protection akin to qualified immunity. That is, resolution at the earliest possible stage.

Conveniently ignored by the EEOC in its amicus brief in Garrick, the commission’s religion guidance also recognizes this principle, explaining that the ministerial exception, one aspect of the First Amendment’s religious autonomy doctrine,

is not just a legal defense that can be raised by religious institutions, but a constitutionally-based guarantee that obligates the government and the courts to refrain from interfering or entangling themselves with religion. As such, it should be resolved at the earliest possible stage before reaching the underlying discrimination claim.

Early resolution of religious defenses comports with the Constitution. The time and resources needed to defend a nonprofit religious organization in prolonged legal battles can infringe on their First Amendment rights. As Justice Alito wrote in his concurrence in Hosanna-Tabor, “the mere adjudication of such questions poses grave problems for religious autonomy.”

In one former case, EEOC v. Catholic University of America, the commission dragged the university through two years of investigation and four years of litigation, including a one-week trial and appeal, only for the D.C. Circuit to ultimately conclude that “the EEOC’s two-year investigation” and the ensuing litigation “constituted an impermissible entanglement” with religious doctrine.

Such impermissible entanglement is costly to religious organizations. Those that can’t afford to resist are coerced to succumb to settlement demands. They are forced to choose between capitulation or insolvency. That is no choice at all.

Our predictions from the Faith Bible petition are already, sadly, coming true. On remand, the district court “strongly recommend[ed]” mediation, warning Faith Bible that vindicating its rights will be “very expensive” given “the discovery process, preparation for trial, a lengthy jury trial, and what the Court suspects is an inevitable appeal from the result.” And in a similar prior case arising out of Massachusetts courts, Gordon College, a well-known religious school, was pressured into settling an employment dispute rather than undergoing the intrusion and expense of full merits discovery and trial.

This case is now bigger than Moody or Faith Bible or Gordon College. It’s about the EEOC’s using the power and resources of the federal government to force religious employers to muster a lengthy legal defense or capitulate.

The handwriting is on the wall. The government can outspend and outlast even the best-funded litigants. Religious employers, be warned. The EEOC is coming for you. If it can’t win on the merits, it will win by exhaustion on the taxpayer’s dime.

Ironically, the EEOC often views itself as fighting for the little guy, the employee, against the big, bad employer. But in practice, the religious employer becomes the little guy against the powerful EEOC.

The EEOC would do well to remember that it is an arm of the federal government, responsible for serving all the people, not a partisan or public-interest advocacy organization like the ACLU. The EEOC has a duty of good government and not just aggressive litigation. And it has a duty to uphold the Constitution, including the First Amendment’s protection for religious autonomy, and to enforce the law as written by Congress in an evenhanded way.

Rachel N. Morrison is a fellow at the Ethics and Public Policy Center, where she directs 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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