Gender Identity Discrimination in Employment: Analysis of H.R. 3686 in the 110th Congress
Order Code RL34242
Gender Identity Discrimination in Employment:
Analysis of H.R. 3686 in the 110th Congress
November 6, 2007
Edward Chan-Young Liu
Law Clerk
American Law Division
Gender Identity Discrimination in Employment: Analysis
of H.R. 3686 in the 110th Congress
Summary
H.R. 3686, a bill to prohibit employment discrimination on the basis of actual
or perceived gender identity, was introduced in the 110th Congress and appears to
represent half of an earlier bill that dealt with both gender identity and sexual
orientation discrimination. Gender identity appears to include, but likely is not
limited to, trans-gender status. Like the earlier bill, H.R. 3686 would also prohibit
employment discrimination against an individual based upon the gender identity of
persons associated with that individual, and does not permit disparate impact claims
of gender identity discrimination. A minority of states have enacted their own
prohibitions against gender identity employment discrimination. Additionally, some
types of gender identity employment discrimination may already be prohibited by
existing prohibitions against sex stereotypes and harassment in Title VII of the Civil
Rights Act of 1964, despite the fact that Title VII’s definition of sex generally has not
been interpreted to encompass trans-gender status. H.R. 3686 does not appear to
apply to religious organizations as defined under Title VII. However, even if H.R.
3686 were enacted, religious organizations may still be prohibited from engaging in
those types of gender identity discrimination that are currently prohibited by Title
VII. Alternatively, despite the fact that H.R. 3686 does not claim to limit the
provisions of any other federal or state discrimination law, the bill could be read to
implicitly repeal judicial interpretations of sex stereotype discrimination under Title
VII.
Contents
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Anatomical Sex vs. Gender Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sex stereotypes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sexual harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Effect of H.R. 3686 on existing law . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Employment Practices Prohibited by H.R. 3686 . . . . . . . . . . . . . . . . . . . . . . 6
Perceived gender identity discrimination is prohibited . . . . . . . . . . . . . 6
Associational rights are protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Disparate gender identity impact claims are disallowed . . . . . . . . . . . . 6
Religious Organizations Under H.R. 3686 . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Definitions of religious organizations . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The ministerial exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gender Identity Discrimination in
Employment: Analysis of H.R. 3686 in the
110th Congress
History
On September 27, 2007, Representative Barney Frank of Massachusetts
introduced two bills that separately prohibit employment discrimination on the basis
of sexual orientation and gender identity, respectively.1 The bills appear to separate
the issues of sexual orientation and gender identity discrimination that had been
conjoined in an earlier bill, also introduced by Representative Frank.2 H.R. 3686,
which appears to represent the half of the earlier bill that dealt with employment
discrimination on the basis of gender identity, would be the first federal prohibition
on gender identity discrimination, if enacted.3 However, predicting how its
provisions would be applied is complicated by existing judicial interpretations of
“sex” under Title VII of the Civil Rights Act of 1964 that may also incorporate
instances of gender identity discrimination.
Anatomical Sex vs. Gender Identity
Although Title VII’s prohibitions against discrimination on the basis of sex
generally have not been interpreted to include discrimination on the basis of gender
identity,4 in Schroer v. Billington, the United States District Court for the District of
Columbia recently held that Title VII may in fact encompass trans-gender
1 H.R. 3685 and H.R. 3686, 110th Cong. (2007). See also, CRS Report RS22740, Sexual
Orientation Discrimination in Employment: Analysis of H.R. 3685, the Employment Non-
Discrimination Act of 2007, by Edward Chan-Young Liu. H.R. 3685, which would prohibit
only sexual orientation discrimination, was introduced and reported favorably, with no
amendments, out of the House Committee on Education and Labor, on October 18, 2007.
Although that bill does not deal with gender identity discrimination, it is very similar to H.R.
3686, particularly when looking at the types of employers the bills would apply to.
2 See, Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007).
3 A minority of jurisdictions have enacted laws prohibiting gender identity discrimination.
See, e.g., CAL. GOV’T CODE § 12926 (incorporating gender identity definition in CAL.
PENAL CODE § 422.56(c)); D.C. CODE § 2-1401.02(12A); 775 ILL. COMP. STAT. 5/1-102;
N.J. STAT. ANN. § 10:2-1; ME. REV. STAT. ANN. tit. 5, § 4553; MINN. STAT. § 363A.01;
N.M. STAT. § 28-1-2(Q); R.I. GEN. LAWS § 28-5-6(10); WASH. REV. CODE § 49.60.040(15).
4 See, Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984); DeSantis v. Pacific
Telephone and Telegraph Co., 608 F.2d 237 (9th Cir. 1979); Holloway v. Arthur Andersen,
566 F.2d 659 (9th Cir. 1977).
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discrimination.5 According to that court, the “factual complexities that underlie
human sexual identity” warranted a more developed record, including “the scientific
basis of sexual identity, and gender dysphoria in particular.”6 Other courts, while not
adopting the reasoning of the court in Schroer, have held that, under some
circumstances, victims of treatment that would arguably also qualify as gender
identity discrimination may be able to successfully assert that they were victims of
sex stereotypes or sexual harassment under Title VII.
Sex stereotypes. Victims of gender identity discrimination may prevail
under Title VII where the facts also indicate the presence of discrimination for failure
to conform to “sex stereotypes,” as defined by the United States Supreme Court in
Price Waterhouse v. Hopkins.7 In that case, a female employee was denied
partnership in an accounting firm despite the fact that she was regarded as a high
performer. Tellingly, partners in the firm had instructed her to act more femininely
in order to be considered for a partnership in the future.8 The Court held that Price
Waterhouse was applying standards for partnership in a prohibited sexually disparate
manner, in that Title VII did not permit an employer to evaluate female employees
based upon their conformity with the employer’s stereotypical view of femininity.9
The sex stereotype theory may also be viable in cases involving trans-gender
individuals. In Smith v. Salem, a male firefighter who was undergoing gender
transition to female argued that he had been suspended because of his feminine
appearance.10 The Sixth Circuit held that, to the extent that the firefighter asserted
that she experienced discriminatory treatment due to the fact that she did not conform
to what her employer believed males should look and act like, she had sufficiently
plead a prima facie case of sex discrimination.11 Similarly, in Barnes v. Cincinnati,
a male police officer undergoing gender transition to female was denied a promotion
because she acted too femininely in her supervisors’ opinions.12 Coverage under the
sex stereotype theory, however, only goes so far. The Ninth Circuit has held that it
does not violate Title VII for covered employers to require female employees to wear
makeup and long, styled hair so long as these requirements do not impose an
5 Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006).
6 Id. at 212-213. In so holding, the court suggested reexamining the Seventh Circuit’s
holding in Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984).
7 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
8 Id. at 233-235. Partners also objected to her use of vulgar language and reported that she
acted too “macho.”
9 Id. at 250-251. Interestingly, the court in Schroer refused to apply a sex stereotype theory,
reasoning that trans-gender individuals are not attempting to deviate from sexual
stereotypes, but are embracing them as part of their gender transition. Schroer v. Billington,
424 F. Supp. 2d at 211.
10 Smith v. Salem, 378 F.3d 566 (6th Cir. 2004).
11 Id. at 575.
12 Barnes v. Cincinnati, 401 F.3d 729 (6th Cir. 2005).
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“unequal burden” when compared to grooming requirements for male employees.13
In addition, the Tenth Circuit has held that employers may require employees
undergoing gender transition to use the bathrooms designated for their current
anatomical sex.14
Sexual harassment. In the context of sexual harassment, recent court
decisions have been guided by the Supreme Court’s decision in Oncale v. Sundowner
Offshore Services.15 In that case, the Court held that the critical question is whether
the harassment occurred “because of sex.”16 Furthermore, relying on Price
Waterhouse, the Third Circuit held, in Bibby v. Philadelphia Coca Cola Bottling
Comapny, that harassment of an individual for failure to conform to sex stereotypes
could constitute harassment “because of sex” consistent with Oncale.17
The Ninth Circuit has further held, in Rene v. MGM Grand Hotel, that
harassment “which targeted body parts clearly linked to [a person’s] sexuality”
constituted sexual discrimination prohibited by Title VII, and that “whatever else
those attacks may, or may not, have been ‘because of’ has no legal consequence.”18
Although the plaintiff in Rene prevailed, the holding of the Ninth Circuit may
contradict the Supreme Court’s earlier holding in Oncale. As the dissent in Rene
noted, the Ninth Circuit relied in large part on Doe v. City of Belleville, in which the
Seventh Circuit argued that evidence of physical abuse of a sexual nature alone could
lead to an inference that the victim was targeted because of his gender.19 That
judgment, however, was vacated and remanded to the Seventh Circuit after the
13 Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). H.R. 3686 explicitly
allows enforcement of “reasonable” grooming codes. H.R. 3686 § 7(a)(5).
14 Etsitty v. Utah Transit Auth., ___ F.3d ____ (10th Cir. 2007). H.R. 3686 contains
provisions explicitly allowing segregated changing and shower facilities. Note, however,
that bathrooms are not listed explicitly. H.R. 3686 § 7(a)(3). H.R. 3686 also explicitly
would not require additional facilities to be built to comply with the bill. H.R. 3686 §
7(a)(4).
15 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
16 Id. at 81. The Court also recognized that an inference that harassment is “because of sex”
is not obvious where the harasser and the victim are of the same sex, but provided three
examples of how such an inference could be established: (1) if the harasser sexually desired
the victim; (2) if the harasser was hostile to the presence of one sex in the workplace; or (3)
if comparative data showed that the harasser targeted only members of one sex. Id. at 80-81.
This discussion of Oncale is not meant to imply that gender identity harassment is only
perpetrated by persons of the same sex as the victim, but merely to suggest that an
employer’s assertion that harassment occurred solely because of trans-gender status, and not
sex, may be refuted by the methods of proof offered in Oncale.
17 Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3rd Cir. 2001).
18 Rene v. MGM Grand Hotel, 305 F.3d 1061, 1064, 1066 (9th Cir. 2002). In this case, the
plaintiff believed he was harassed because of his sexual orientation, but the court’s holding
may have broader implications beyond this type of harassment.
19 Id. at 1066 (citing Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997)).
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Court’s decision in Oncale.20 The text of the opinion in Oncale also seems to require
more than conduct of a sexual nature in order to give rise to an inference that it was
“because of sex.”21
Effect of H.R. 3686 on existing law. H.R. 3686 would define gender
identity as “the gender-related identity, appearance, or mannerisms or other gender-
related characteristics of an individual, with or without regard to the individual’s
designated sex at birth.”22 Given this definition, a reasonable court could conclude
that the definition of “gender identity” includes the kind of employer behavior
evidenced by the facts in Price Waterhouse v. Hopkins, Smith v. Salem, and Bibby v.
Coca Cola. If H.R. 3686 were enacted, it is unclear whether facts similar to these
cases would be governed by H.R. 3686 or existing protections of Title VII. Section
14 of H.R. 3686 states that
the Act shall not invalidate or limit the rights, remedies, or procedures available
to an individual claiming discrimination under any other Federal law or
regulation.23
Therefore, H.R. 3686 might be interpreted to leave Price Waterhouse’s judicially
created protections in place. The Supreme Court has held that “repeals by
implication are strongly disfavored.”24 However, in United States v. Fausto, the
Supreme Court also held that the normal presumption against implicit repeals is not
present when dealing with “repeal by implication of a legal disposition implied by a
statutory text.”25 Therefore, in that case, the Court held that the Civil Service Reform
Act had implicitly repealed a prior judicial interpretation of the Back Pay Act.26
In H.R. 3686, there are several facts that might argue for implicit repeal of Price
Waterhouse. First, the bill’s stated purpose is “to provide a comprehensive Federal
prohibition of employment discrimination on the basis of gender identity.”27 Second,
the bill explicitly does not allow disparate impact claims of gender identity
20 City of Belleville v. Doe, 523 U.S. 1001 (1998). The Court remanded and instructed the
court below to determine whether harassment had occurred “because of sex.” However, the
case settled before the Seventh Circuit could rehear the case.
21 “[The plaintiff] must always prove that the conduct at issue was not merely tinged with
offensive sexual connotations.” Oncale, 523 U.S. at 81.
22 H.R. 3686 § 2(a)(6).
23 H.R. 3686 § 14. This section also disavows preemption of any state discrimination law.
24 United States v. Fausto, 484 U.S. 439, 452-453 (1988).
25 Id. at 453 (emphasis added). Justice Scalia, writing for the majority, further stated
“[R]econciling many laws enacted over time, and getting them to ‘make sense’ in
combination, necessarily assumes that the implications of a statute may be altered by the
implications of a later statute.” Id.
26 Id. at 453-454.
27 H.R. 3686 § 1(1) (emphasis added). Cf. United States v. Fausto, 484 U.S. at 454 (holding
that the comprehensive nature of the Civil Service Reform Act supported implicit repeal of
the Back Pay Act’s previous interpretation).
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discrimination, while Title VII appears to.28 Third, Price Waterhouse sex stereotypes
brought under Title VII would apply to religious institutions generally, while H.R.
3686 explicitly appears not to apply to religious organizations and schools.29 If the
intent of H.R. 3686 is to leave Price Waterhouse as it stands, the purpose of the
drafters’ inclusion of these last two limits is substantially less clear. Therefore, a
court might conclude that H.R. 3686, if enacted, was meant to supplant the Price
Waterhouse sex stereotype theory currently viable under Title VII.
However, one should not take this to mean that H.R. 3686 is exactly
coterminous with Price Waterhouse under Title VII. For example, if an employer
refused to hire any applicant that had undergone gender transition, regardless of the
applicants’ sex, that act likely would not violate Title VII, but appears to be
prohibited by a plain reading of H.R. 3686.30 Other cases of gender identity
discrimination may not be so clear cut. Were an employer to refuse to promote or
hire any applicant that was simply too “aggressive,” regardless of sex, it is likely that
this adverse employment action would pass muster under Title VII, but it is not
totally clear whether H.R. 3686 would prohibit it. Courts have not yet determined
what appearances or mannerisms are “gender related” as would be required by these
bills. Given the etymology of a gender-loaded word such as “macho,” its
classification as “gender related” seems reasonable. However, characteristics such
as “aggressive,” “vulgar,” or “demure,” may be more difficult as they arguably bear
no relationship to gender beyond crude stereotypes. Nevertheless, such
characteristics could easily be used to mask discrimination on the basis of gender
identity. In these cases, it remains to be seen how far beyond existing law H.R. 3686
would extend.
Interestingly, with respect to sex stereotyping under Title VII, courts have been
careful to refrain from explicitly defining what the traditional masculine or feminine
stereotypes are. Instead, courts have generally looked to the intent of the employer,
finding sex discrimination where the employer’s words or actions indicated reliance
upon stereotypical attributes of men or women.31 It is possible that courts would
continue to use this methodology to determine when employment decisions are made
on the basis of “gender related characteristics” under H.R. 3686.
28 See, infra notes 37-38 and accompanying text for a discussion of H.R. 3686’s provisions
regarding disparate impact.
29 See, infra text accompanying note 46 for a discussion of religious exemptions under Title
VII and H.R. 3686.
30 Other sections of H.R. 3686 refer to employees that are undergoing or have undergone
gender transition. Therefore, “gender identity” appears to include, at a minimum, trans-
gender individuals. H.R. 3686 § 7(a)(3, 4).
31 Price Waterhouse v. Hopkins, 490 U.S. at 236; Smith v. Salem, 378 F.3d at 572; Barnes
v. Cincinnati, 401 F.3d at 735, 737; Jespersen v. Harrah’s Operating Co., 444 F.3d at 1112;
Etsitty v. Utah Transit Auth., ___ F.3d at *17-18.
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Employment Practices Prohibited by H.R. 3686
For the most part, the types of employment actions prohibited by H.R. 3686
dovetail with Title VII’s prohibitions against discrimination on the basis of race,
color, sex, national origin, and religion.32 Notwithstanding this overall similarity, the
provisions of the bill do go beyond Title VII’s provisions in two main ways: (1)
prohibiting discrimination on perceived characteristics; and (2) textually creating
associational rights under the act. That is not to say, however, that the protections
of H.R. 3686 appear uniformly at least as extensive as Title VII’s protections, as the
bill explicitly disallows victims of gender identity discrimination from pursuing a
disparate impact claim. Each of these differences is discussed in detail below.
Perceived gender identity discrimination is prohibited. H.R. 3686
would prohibit discrimination on the basis of actual or perceived gender identity.33
The text of Title VII contains no comparable prohibition against discrimination on
the basis of the perceived race, color, sex, national origin, or religion of a person.
The Americans with Disabilities Act (“ADA”), however, does include in its
definition of disability “being regarded as having a [physical or mental
impairment].”34 The semantic similarity between “perceived” and “regarded”
suggests that existing judicial interpretation of that language in the ADA may be
instructive for courts, agencies, or employers attempting to interpret what is meant
by “perceived gender identity.” In other words, to the extent that “being regarded”
as disabled under the ADA has been held to require an examination of an employer’s
subjectively held beliefs, courts may read H.R. 3686 to require the same.
Associational rights are protected. H.R. 3686 would additionally prohibit
adverse employment actions taken against an individual on the basis of the actual or
perceived gender identity of a person who associates with that individual.35
Although Title VII contains no analogous text, associational rights under Title VII
have been recognized by federal courts in the context of interracial marriage.36
Disparate gender identity impact claims are disallowed. H.R. 3686
would disallow disparate impact claims on the basis of gender identity.37 Therefore,
32 Compare H.R. 3686 § 3(a-d) with Civil Rights Act of 1964, P.L. 88-352, tit. vii, § 703(a-
d) (codified at 42 U.S.C. § 2000e-2(a-d)). H.R. 3686 would also limit applicability to those
employers with fifteen or more employees, as does the current version of Title VII.
Compare H.R. 3686 § 3(a)(4)(A) with 42 U.S.C. § 2000e(b).
33 H.R. 3686 § 3(a-f).
34 42 U.S.C. § 12102(2)(C). For further discussion of the definition of disability under the
ADA, see, CRS Report RL33304, The Americans with Disabilities Act (ADA): The
Definition of Disability, by Nancy Lee Jones.
35 H.R. 3686 § 3(e).
36 E.g., Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891-892 (11th Cir. 1986).
37 H.R. 3686 § 3(g). Some members of Congress noted in testimony before the House
Subcommittee on Health, Employment, Labor and Pensions that allowing disparate impact
claims in this context would require litigants to intrude upon the privacy of fellow applicants
(continued...)
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whereas a Title VII claim could proceed where the plaintiff showed that a particular
job requirement disproportionately impacted one racial or religious group, it does not
appear that this bill would allow a plaintiff to show that a particular job requirement
disproportionately impacts one gender identity over another.38 H.R. 3686 would also
explicitly allow employers to enforce segregated changing and shower facilities and
gender specific grooming codes.39 In both circumstances, the employer would be
required to assign the employee to the appropriate facility or grooming code based
upon the self identified gender identity of the individual (1) at the time of hire, or (2)
upon notifying the employer that the employee is undergoing, or has completed,
gender transition.40
Religious Organizations Under H.R. 3686
In all likelihood, H.R. 3686 would not impose new requirements on “religious
organizations” as the term is defined under Title VII. Additionally, religious
organizations would likely remain free from defending claims of any type of
discrimination with respect to their selection of clergy and certain other positions
related to worship.
Definitions of religious organizations. Section 5 of H.R. 3686 states that
the bill would not apply to religious organizations. Further, Section 2 of the bill
defines religious organizations in a manner that appears similar to the statutory
religious exemption clauses of Title VII. H.R. 3686 defines religious organizations
generally as
(A) a religious corporation, association, or society; or (B) a school, college,
university, or other educational institution or institution of learning, if — (i) the
institution is in whole or substantial part controlled, managed, owned, or
supported by a particular religion, religious corporation, association, or society;
or (ii) the curriculum of the institution is directed toward the propagation of a
particular religion.41
This definition appears comparable with language in Title VII that exempts any
“religious corporation, association, educational institution, or society”42 as well as
educational institutions
37 (...continued)
and employees in order to investigate their gender identities.
38 For an example of how a disparate impact claim of racial discrimination is established
under Title VII, see Griggs v. Duke Power Co., 401 U.S. 424 (1971). Disparate impact
claims available under Title VII likely would not be affected by H.R. 3686.
39 There are similar, but not identical, limits on the protections available under a sex
stereotype claim with respect to facilities. See, supra note 13-14 and accompanying text.
40 H.R. 3686 § 7(a)(3, 5).
41 H.R. 3686 § 2(a)(8).
42 42 U.S.C. § 2000e-1(a).
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if such school, college, university, or other educational institution or institution
of learning is, in whole or in substantial part, owned, supported, controlled, or
managed by a particular religion or by a particular religious corporation,
association, or society, or if the curriculum of such school, college, university,
or other educational institution or institution of learning is directed toward the
propagation of a particular religion.43
Neither H.R. 3686 or Title VII further explain which entities qualify as religious.
Federal courts have held that the question requires inquiry into whether an entity’s
“purpose and character are primarily religious.”44 The Third Circuit, in LeBoon v.
Lancaster Jewish Community Center, identified nine factors other courts have
considered when determining if an institution is religious, none of which are
determinative:
(1) whether the entity operates for a profit, (2) whether it produces a secular
product, (3) whether the entity’s articles of incorporation or other pertinent
documents state a religious purpose, (4) whether it is owned, affiliated with or
financially supported by a formally religious entity such as a church or
synagogue, (5) whether a formally religious entity participates in the
management, for instance by having representatives on the board of trustees, (6)
whether the entity holds itself out to the public as secular or sectarian, (7)
whether the entity regularly includes prayer or other forms of worship in its
activities, (8) whether it includes religious instruction in its curriculum, to the
extent it is an educational institution, and (9) whether its membership is made up
by coreligionists.45
Although, as discussed above, H.R. 3686 would not apply to religious organizations,
neither it nor Title VII exempt qualifying religious entities from defending claims of
sex discrimination. Therefore, gender identity claims brought under a sex stereotype
theory may still be viable against a religious entity, insofar as H.R. 3686 does not
supersede Price Waterhouse and its progeny.46
The ministerial exception. At a minimum, claims of gender identity
discrimination, whether brought under H.R. 3686 or Title VII, would likely not be
applicable to religious organizations’ selection of certain positions involved in
worship or ritual. Discrimination on the basis of race, sex, national origin, or religion
has been held to be permissible, in these positions, under the judicially created
43 42 U.S.C. § 2000e-2(e)(2). For a more detailed discussion of Title VII’s definition of
religious schools, see Jamie Darin Prenkert, Liberty, Diversity, Academic Freedom, and
Survival: Preferential Hiring Among Religiously-Affiliated Institutions of Higher Education,
22 Hofstra Lab. & Emp. L. J. 1 (2004).
44 EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). See also EEOC
v. Kamehameha Schools, 990 F.2d 458, 461 (9th Cir. 1993).
45 LeBoon v. Lancaster Jewish Comm. Ctr. Ass’n., 2007 U.S. App. LEXIS 22328, 19-20 (3rd
Cir. 2007) (decided Sept. 19, 2007). See also, CRS Report RS22745, Religion and the
Workplace: Legal Analysis of Title VII of the Civil Rights Act of 1964 as It Applies to
Religious Organizations, by Cynthia Brougher.
46 See also, supra text accompanying notes 23-29 for a discussion of the effect of H.R. 3686
on existing Title VII protections.
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“ministerial exception” to Title VII. This exception was created to reconcile some
of Title VII’s prohibitions with the Free Exercise Clause of the federal Constitution.
It has been adopted in eight federal circuits and applies to employees whose “primary
duties include teaching, spreading the faith, church governance, supervision of a
religious order, or supervision of participation in religious ritual and worship.”47 This
exception to Title VII allows discrimination on the basis of any characteristic,
including race and sex, but only with respect to “a religious institution’s choice as to
who will perform spiritual functions.”48 Because the rationale for this exception is
derived from the federal Constitution, and not the text of Title VII, it would likely be
wholly applicable to H.R. 3686 as well.
47 Petruska v. Gannon Univ., 462 F.3d 294, 304 (3rd Cir. 2006) (citing favorable opinions
in the 4th, 5th, 7th, 8th, 9th, 11th, and D.C. Circuits).
48 Petruska v. Gannon, 462 F.3d at 305.