Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of race, religion, national origin, and sex. On June 15, 2020, the United States Supreme Court, in its decision in Bostock v. Clayton County, Georgia, redefined the term “sex” in Title VII to include sexual orientation and gender identity. 

Bostock has major implications for religious institutions and faith-based organizations. In a friend of the court brief I helped file on behalf of RFI’s Islam and Religious Freedom Action Team, along with two Sunni scholars of Islam, we warned the Supreme Court about the effects of such a government intrusion into the religiously-inspired employment  practices of Muslim faith-based organizations, including mosques, Islamic schools, etc. In his dissenting opinion, Justice Alito reflected that warning:

Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “religious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

Specifically, how does the Bostock case affect the hiring practices of Muslim institutions? I recently had a comprehensive and wide-ranging discussion on this question with Dr. Abdullah Hamid Ali, Professor at Zaytuna College, Founder of Lamppost Education Initiative, and a contributor to RFI’s brief in the Bostock case.

Among the points of discussion were the following: 

• Generally speaking, Bostock makes it illegal for employers to make employment decisions based on an employee or potential employee’s status as a homosexual or transgender person. With respect to people claiming to be transgender, this likely means that employers must accomodate their request to use bathrooms designated for the opposite sex. Title VII applies only to organizations with at least 20 employees, however, so smaller organizations are exempt from this ruling.

• The Bostock decision does not affect hiring for positions in which the job description has an overt religious character, such as imams and Islamic studies teachers. This is due to the “ministerial exception,” a legal doctrine holding that the First Amendment exempts such positions from discrimination laws. 

• However, the ministerial exception will most likely not extend to positions that do not have an explicit religious function, such as gym teachers or receptionists. A Supreme Court decision clarifying the scope of the ministerial exception is expected in the coming weeks. Islamic institutions are advised to ensure that their employees’ job descriptions clearly  include any religious functions they are expected to serve.

• Islamic institutions may be able to defend themselves against lawsuits under Title VII for discrimination on the basis of sexual orientation and gender identity by citing the Religious Freedom Restoration Act (RFRA). That is, Islamic institutions could claim an exemption to the Bostock ruling under RFRA on the basis that refusing to hire transgender or homosexual employees is grounded in their religious beliefs. Muslim-owned businesses might also claim such an exemption. However, a bill pending in Congress, the Equality Act, would eliminate RFRA as a defense to such lawsuits. The bill is expected to become law if Democrats gain control of the Senate in November.

• Title VII also exempts overtly religious institutions from discrimination on the basis of religion, a provision known as the religious staffing exemption. That is, a mosque or Islamic school is permitted by law to hire only Muslims. However, this exemption does not extend to discrimination on the basis of other factors covered by Title VII such as sex, which now includes sexual orientation and gender identity. While a religious employer might argue that Title VII’s religious staffing exemption permits them to hire only those whose beliefs and conduct are consistent with the institution’s beliefs, it is doubtful whether a court would accept such an argument.

• Islamic institutions may believe that they are not practically affected by Bostock, perhaps because few people who are openly homosexual or transgender would actually apply for employment at such institutions, or that those who do are not likely to sue if they are not hired. But as LGBT ideology becomes more prevalent in the culture, such cases are likely to arise. This possibility increases given that anti-Muslim interest groups may seek to harass Islamic instiutions by targeting them for lawsuits. Likewise, LGBT interest groups seeking to challenge traditional, orthodox Islamic beliefs on sexuality may sponsor lawsuits against mosques and Islamic schools.

To watch the entire conversation with Dr. Abdullah Hamid Ali, see here.