32 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP B A Developing Conflict Between Religious And LGBTQI+ Rights After Bostock The EEOC’s SEP identifies the protection of immigrant, migrant, and other vulnerable workers as a national enforcement priority. Much of that activity in recent years has focused on the protection of employees against religious bias in the workplace, especially Muslim employees. Although the focus of the EEOC’s efforts to combat religious discrimination have most often centered around issues of anti-Muslim bias, in more recent years, the EEOC has demonstrated a willingness to pursue religious discrimination claims on behalf of other religious groups as well.24 On January 15, 2021, Commission approved revisions to its Compliance Manual Section on Religious Discrimination.25 In addition to further direction on religious discrimination and accommodation, the guidance includes sections addressing religious organizations, the ministerial exception to Title VII, First Amendment protections to employers, and protections under the federal Religious Freedom Restoration Act (“RFRA”). The Commission’s focus on such areas appears in part to be a reaction to the U.S. Supreme Court’s Bostock decision, as the introduction to the updated guidance specifically refers to the Court’s language in the opinion regarding religious liberty.26 Few issues have garnered as much of the EEOC’s attention over the past few years as its campaign to have LGBTQ discrimination recognized as a prohibited form of discrimination under Title VII.27 That issue was finally settled in 2020 by the U.S. Supreme Court in the landmark decision, Bostock v. Clayton County Georgia. On June 15, 2020, the Supreme Court held that Title VII prohibits discrimination against gay or transgender employees as a form of sex discrimination.28 The 6-3 decision authored by Justice Gorsuch was a significant victory for the EEOC. In its opinion, the Supreme Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 29 Further, it noted that although “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result . . . the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” 30 After noting that “[f]ew facts are needed to appreciate the legal question we face,” the Supreme Court explained that, “[e]ach of the three cases before us started the same way: An employer fired a longtime employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” 31 The Supreme Court reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. The EEOC has been diligently pursuing this theory of discrimination in the courts for several years, resulting in quite a few victories in line with the Bostock decision. Recently, the Commission’s leadership in this respect has come under scrutiny since the Bostock decision was issued. In June 2021, the EEOC issued guidance 24 The EEOC’s focus on protecting employees’ rights to practice their religion in the workplace is not limited to workers of Muslim or other mainstream faiths. The EEOC has brought several lawsuits in recent years that target different kinds of religious practice. For example, in EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., 213 F. Supp. 3d 377 (E.D.N.Y. 2016), the EEOC successfully argued that concepts known as “Onionhead” and “Harnessing Happiness” were entitled to Title VII protection as religious beliefs. Id. at *3-5. The court held that to determine whether a given set of beliefs constitutes a religion for purposes of Title VII, “courts frequently evaluate: (1) whether the beliefs are sincerely held and (2) whether they are, in [the believer’s] own scheme of things, religious.” Id. at 394. Under that rubric, the court found that Onionhead was a religion under Title VII. Id. at 398. 25 Press Release, Equal Employment Opportunity Commission, Commission Approves Revised Enforcement Guidance on Religious Discrimination (Jan. 15, 2021), available at www.eeoc.gov/newsroom/commission-approves-revised-enforcement-guidance-religious-discrimination. 26 U.S. Equal Employment Opportunity Commission, EEOC Compliance Manual Section 12: Religious Discrimination at n.2 (2021). 27 The EEOC’s Strategic Enforcement Plan explicitly identifies “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex” as one of its key emerging and developing issues. Id. 28 Bostock v. Clayton County, Ga., 140 S. Ct. 1731 (2020). 29 Id. at 1737. 30 Id. 31 Id.