©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 35 was exempt from Title VII.52 Finding that the institution did not qualify for Title VII’s statutory exemption, the court examined whether it was nevertheless protected by the RFRA, that is, whether Title VII would substantially burden its sincere exercise of religion, and whether Title VII substantially burdens the institution’s ability to conduct business in accordance with those beliefs. The court first concluded that there was “no dispute” that “[the institution] sincerely exercises its religious beliefs as embodied in its employment policies.” 53 The court then considered whether plaintiff satisfied the test for establishing a substantial burden— i.e., that it “(1) identif[ed] the religious exercise; (2) allege[d] that the challenged law pressures plaintiff to modify that exercise; and (3) show[ed] that the penalty for noncompliance is substantial.” 54 The court concluded that the institution met this test, holding that the first element was not disputed and “[f] or the second, the religious employers are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” 55 Since plaintiffs established a “substantial burden,” defendants were required to show that the “substantial burden is justified by a compelling interest and that they have chosen the least restrictive means of advancing that interest.” 56 The court found the defendants’ “overly broad formulation of its compelling interest”—i.e., “eradicating workplace discrimination”—to be without merit.57 Rather than rely on broadly formulated interests, courts must scrutinize the “asserted harm of granting specific exemptions to particular claimants”; the relevant question is “whether the government has a compelling interest in denying employers like [the institution] a religious exemption.” 58 Further, the court held that “[f]orcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest, especially when Defendants are willing to make exceptions to Title VII for secular purposes.” 59 Accordingly, the court granted summary judgment to the plaintiffs as to their RFRA claim. The court also analyzed whether, under Bostock v. Clayton County, the plaintiffs’ policies against bisexual conduct, concerning certain sexual activities and dress codes, prohibiting hormone treatments and genital surgery, and regarding sex-specific restrooms, violated Title VII. The court first concluded that the proper test to be applied was “favoritism, plus blindness to sex if the secondary trait is homosexuality or transgenderism.” 60 The court reasoned that the “simple favoritism test” could not be “fully recognized with the Supreme Court’s analogies, and neither can the blindness test, standing alone, given Bostock’s articulation of the standard.” 61 The court concluded that the polices against bisexual conduct “inherently target sex” and therefore violated Title VII, to the extent that an “individual who is bisexual inherently identifies as homosexual to some extent, even if they also identify as heterosexual, because bisexuality is some combination of the two orientations.” 62 The court similarly held that the policies prohibiting hormone treatments and genital surgery violated Title VII since they would only function to discriminate against individuals with gender dysphoria.63 As to the policies regarding certain sexual activities, dress code, and sex52 Id. at *23. 53 Id. 54 Id. (citing Eastern Texas Baptist University v. Burwell, 793 F.3d 449, 456 (5th Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell, 578 U.S. 403, and cert. granted, judgment vacated sub nom. Univ. of Dall. v. Burwell, 578 U.S. 969 (2016)). 55 Id. As to the third element, the court found that the “penalty for non-compliance would be EEOC enforcement, which would subject Braidwood to liability for backpay, compensatory damages, and punitive damages.” Id. 56 Id. 57 Id. 58 Id. (emphasis in original). 59 Id. On this same basis, the court granted summary judgment as to plaintiffs’ First Amendment claim, applying strict scrutiny to the analysis since “Title VII is not a generally applicable statute to the existence of individualized exemptions.” Id. at *26. The court held that the defendants’ “broadly formulated government interests” were insufficient to withstand First Amendment challenge. Id. The court also found that the institution was “engaged in overt expression regarding tis religious views of homosexuality and transgender behavior.” Id. at *28. 60 Id. at 31. 61 Id. (citing Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020) (“[I]f changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”). 62 Id. 63 Id. at 35.