EEOC Says Title VII’s Religious-Organization Exemption Doesn’t Apply to Sex Discrimination Claims

The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with preventing and remedying employment discrimination, recently filed an amicus brief in the Ninth Circuit, arguing that religious organizations cannot make hiring decisions based on religion.

The case, World Vision v. McMahon, involves the application of religious defenses to a sex discrimination claim.

The facts of the case are simple. Aubry McMahon applied for a job at World Vision, a “Christian ministry dedicated to sharing the gospel of Jesus Christ” through “humanitarian outreach to children and families around the world who are poor and underserved.” During the interview process, McMahon explicitly affirmed that she could comply with World Vision’s religious standards of conduct, including the ministry’s beliefs about traditional marriage. After World Vision offered her a job, McMahon disclosed that she was in a same-sex marriage. Because McMahon could not comply with the ministry’s religious standards of conduct, World Vision rescinded the job offer.

In its amicus brief, the EEOC describes McMahon’s deceit as “successful[] navigat[ion]” of World Vision’s hiring process.

McMahon’s lawsuit raises claims of discrimination on the basis of sex (and sexual orientation) under Title VII and state law.

In defense, World Vision raised several religious defenses under the First Amendment and Title VII, including Title VII’s religious organization exemption, which provides a statutory defense to Title VII claims when religious organizations hire “individuals of a particular religion.”

The EEOC voted along party lines (with Republican Commissioner Andrea Lucas disapproving) to insert itself into the private employment discrimination suit and argue against World Vision’s religious defenses, claiming that Title VII’s exemption is a defense only to religious-discrimination claims.

In support, the commission relies on a 1986 Ninth Circuit case, EEOC v. Fremont Christian School, which involved what the EEOC characterizes as a “nearly indistinguishable” sex discrimination claim against a religious employer. But the EEOC glosses over a key difference between the cases. In Fremont, the court found that the employer’s religious justification for paying men more than women was pretextual. Indeed, the EEOC’s Title VII religion guidance cites Fremont as an example of when a “religious employer’s practice and justification were ‘conclusive[ly]’ a pretext for sex discrimination.” In contrast, here, McMahon agrees that World Vision’s religious reasons for rescinding her job offer were not pretextual.

The EEOC also fails to mention, much less address, a more recent Ninth Circuit case, Garcia v. Salvation Army, where the court recognized in 2019 that Congress “exempt[ed] religious organizations from the entire subchapter of Title VII.”

This aligns with the plain text of Title VII, which states: “This subchapter shall not apply to [a religious organization] with respect to the employment of individuals of a particular religion.” This subchapter includes all of Title VII, including its prohibition against sex discrimination.

As World Vision points out in its brief, the Supreme Court, in its 2020 Bostock v. Clayton County decision, recognized that Title VII’s religious-organization exemption (and other religious defenses) could apply to Title VII sex discrimination claims. The EEOC weakly argues that “Bostock did not abrogate Ninth Circuit precedent,” while at the same time ignoring binding Ninth Circuit precedent in Garcia.

World Vision also points out that Title VII’s exemption is “expressly incorporated” into the Pregnant Workers Fairness Act (PWFA). The PWFA is a 2022 law that requires employers to provide reasonable accommodations for “the known limitations” related to an employee’s “pregnancy, childbirth, or related medical conditions.” If Title VII’s exemption applied only to claims of religious discrimination, as the EEOC claims, then it would make no sense to incorporate the exemption into a pregnancy accommodation law that does not prohibit religious discrimination. In the words of PWFA sponsor Senator Bill Cassidy: the EEOC’s position is “neither what Congress intended nor what Congress passed.”

The EEOC calls World Vision’s PWFA argument “incorrect,” claiming the PWFA does not change the alleged “consensus” that the exemption does not apply to sex discrimination claims. Yet a mere two and a half weeks earlier, the EEOC took a contrary position in litigation challenging its PWFA regulations, stating that the assertion that “EEOC ‘interprets the PWFA and Title VII religious exemptions to apply only to claims of religious discrimination’ . . . is incorrect.” A subsequent EEOC brief filed in that case just two weeks after the EEOC’s World Vision brief failed to correct or clarify this major discrepancy in litigation positions.

Perhaps the EEOC will characterize this expedient contradiction as “successful navigation” of litigation.

The EEOC’s World Vision brief is also replete with contradictory arguments. For example, the EEOC quotes its religion guidance to explain that a religious organization can raise the Title VII exemption as a defense when the organization “made the challenged employment decision on the basis of religion.’” In a footnote, the commission again quotes its religion guidance to acknowledge that the exemption’s protections allowing religious organizations to employ individuals “of a particular religion” “has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Nevertheless, the EEOC maintains that the exemption does not apply to World Vision’s religious decision to rescind McMahon’s job offer after the ministry learned that McMahon could not comply with its religious standards of conduct on marriage.

Many religious beliefs touch on matters of marriage, gender, and sexuality, so it’s not hard to see how an employer’s religious decision on related issues could be characterized as a decision based on sex or sexual orientation, as McMahon does here.

Indeed, that is exactly what happened a few years ago in Garrick v. Moody Bible Institute. There, the district court dismissed the employee’s religious and sex discrimination claims against the Bible college for declining to renew an employment contract when the employee did not align with, and even advocated against, Moody’s doctrinal statement. The court then allowed the employee to amend her complaint, recasting her claims as only sex discrimination and “in a way that is untethered from her disagreements with Moody’s religious views.”

But an organization’s religious protections under Title VII should not depend on how an employee chooses to characterize the organization’s religious decision-making.

Nevertheless, the EEOC inserted itself into Garrick (also by a split vote along party lines), filing an amicus brief arguing that Moody should not be able to appeal the denial of its religious defenses until after all the claims were fully litigated. As former EEOC general counsel Sharon Fast Gustafson and I wrote at the time:

If Moody’s religious defenses were vindicated only after a lengthy litigation process, Moody and [the employee] 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.

We warned that the Democrat-controlled EEOC was targeting religious organizations. Sadly, we were not wrong. The EEOC’s World Vision amicus brief is further proof of the commission’s disdain for religion and disregard for religious defenses.

In its brief, the EEOC opines on whether McMahon views her same-sex marriage as religious. According to the government agency, because McMahon does not view her marriage as religious, the exemption doesn’t apply.

But the inquiry under Title VII’s exemption is whether the employee’s religion aligns with the employer’s religion, defined in Title VII to include “all aspects of religious observance and practice, as well as belief.” Regardless of how religious McMahon views her same-sex marriage, her religious beliefs about marriage and her marriage itself do not align with World Vision’s religious beliefs about marriage and religious standards of conduct required of ministry employees

If the EEOC gets its way, religious organizations will no longer be able to make hiring decisions, or any employment decision for that matter, based on religion so long as the plaintiff is smart enough to frame the religious decision-making as a sex discrimination claim without reference to the religious disagreement.

The EEOC’s brief notwithstanding, Title VII protections for religious organizations should not depend on semantics.

Editor’s note: This post has been updated since its original publication.