The Equality Act’s Potential Impact on Christian Organizations
The societal issues that the Equality Act seeks to address are often ones that are prone to controversy. Regardless of your ministry’s individual perspective related to the Equality Act, it’s important to understand the implications that the Equality Act may have on your ministry if it becomes law.
Religious Freedom Court Rulings in 2020
Before addressing the status and potential impact of the Equality Act presently being considered by Congress, it’s important to note that 2020 saw a few new and generally positive developments in the area of religious freedom. The United States Supreme Court ruled in favor of religious institutions in several cases. For example, in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court reinforced the broad application of the ministerial exception that permits religious institutions to make employee hiring and firing decisions based on their sincerely held religious beliefs.
Here are links to resources from Brotherhood Mutual that analyze recent U.S. Supreme Court decisions:
A new federal initiative making its way through the legislative process may, however, challenge certain religious freedom protections for individuals and religious organizations. This federal legislation is known as the Equality Act.
What is the Equality Act?
The Equality Act is a comprehensive federal bill that has been introduced in prior sessions of Congress, and was reintroduced on February 18, 2021 as H.R. 5. Although this bill is not yet law, President Biden has made passing the Act a top priority. As of March 2021, the Equality Act had been approved by the House of Representatives but had not yet been approved by the U.S. Senate.
If enacted, the Equality Act would include “sexual orientation” and “gender identity” as protected classes within several federal anti-discrimination laws. This approach would expand on the Supreme Court’s ruling in Bostock v. Clayton County in 2020. In Bostock, the Supreme Court held that employment discrimination based on an employee’s sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964. This case presented questions regarding the ability of religious institutions to operate in accordance with their sincerely held beliefs.
Because the Equality Act would amend several different federal anti-discrimination laws, each of which having varying coverage requirements (such as employers meeting minimum size requirements, educational institutions receiving federal funding, etc.), the Equality Act would likely apply to a variety of different religious institutions.
The Equality Act would also expand the definition of places of “public accommodations” in Title II of the Civil Rights Act of 1964 to include the following:
A place or establishment that provides recreation, public gathering, or public display.
"Any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services."
This expansion could potentially subject religious organizations to the Equality Act’s definition of public accommodation to the extent that a religious organization serves the public in these capacities, which could create new avenues for bringing lawsuits against religious organizations nationwide.
The Equality Act also would make the following changes:
Adds elements to the definition of “sex” to include “sex stereotypes,” “sexual orientation or gender identity,” “sex characteristics, including intersex traits,” and “pregnancy, childbirth, or a related medical condition.”
Exempts itself from the requirements and protections of the Religious Freedom Restoration Act of 1993 (RFRA).
The Equality Act has the potential to reduce many religious freedom protections that individuals and business owners were granted under the RFRA, but some non-profit religious institutions should still maintain many broad protections under the First Amendment of the U.S. Constitution, as well as under various state constitutions.
How Will the Equality Act Impact Christian Organizations?
Depending on the sincerely-held beliefs of faith-based institutions, the Equality Act could create various challenges, pitting the anti-discrimination purpose of the Equality Act against federal First Amendment protections related to the free exercise of religion. If enacted, there is likely to be litigation regarding provisions in the Equality Act that could unconstitutionally restrict the free exercise of religion as protected by the First Amendment. For example, some religious organizations are concerned about the Equality Act’s impact on the issues such as:
The sanctity of life.
Redefining traditional gender roles involving activities such as college and university athletic programs.
Providing benefits and services to the community through homeless shelters, food banks, and adoption agencies, for example.
Religious health care providers with conscientious objections to performing certain types of medical procedures.
With the Act’s expansion of the definition of what a place of public accommodation is, Christian organizations may need to reevaluate their practices with respect to renting or lending facilities to outside organizations. It’s a good idea to require that facility use be tied to the organization’s religious mission and purpose. This step may help avoid being classified as a place of public accommodation. Brotherhood Mutual provides a Facility Use Continuum graphic that can help your organization understand safer versus less safe approaches to take when offering facilities for use to outside organizations.
In addition, according to the 2020 Bostock ruling, the principles of which would be expanded by the Equality Act, religious institutions should exercise caution when hiring a staff member who does not serve a clear religious function (such as a custodial staff member or a groundskeeper), as these types of employees may not be subject to the protections of the ministerial exception.
Although the Equality Act creates some challenges to religious freedom, it should not affect various religious exemptions to federal anti-discrimination laws for religious organizations. Indeed, religious institutions have traditionally enjoyed strong protections in relation to discrimination claims. For example, the Fair Housing Act provides certain exemptions for religious institutions, allowing these institutions to give preference to those who share in their faith when selling or renting a dwelling. Likewise, certain religious institutions, including Christian churches, schools, universities, and related ministries, are permitted to show employment preference to individuals of a particular religion who perform work in positions that serve a religious function.
How Can Christian Organizations Prepare and Protect Themselves?
Update Governing and Organizational Documents
To prepare for potential future challenges to religious freedom, it is important for religious institutions to document their sincerely held religious beliefs in writing to be able to reference them if challenged. Below are some suggestions designed to accomplish this goal:
Include a purpose statement in governing documents (i.e. bylaws and/or constitution) that outlines the organization’s foundational beliefs.
Incorporate specific belief statements into governing and organizational documents.
Include specific references to Scripture in support of sincerely held religious beliefs.
Although these steps may not offer an absolute protection from liability, they can go a long way toward helping religious organizations strengthen their legal position in this area. Brotherhood Mutual has developed a resource page for Religious Freedom Protection that may be helpful to your organization.
Consider Adding Religious Freedom Protection Coverage
In light of changing religious, legal, and cultural trends, Christian organizations are encouraged to add religious freedom protection coverage to their property/liability insurance policy. Brotherhood Mutual offers broad Religious Freedom Protection Coverage that provides innovative protection to religious institutions in relation to their belief-based decisions and communication. This includes coverage for emotional injury claims that result from alleged discrimination, religious communication, or religious activities. The endorsement also offers funds to help respond to targeted actions by government agencies, as well as tax-exemption challenges.
In addition, for colleges and universities, Brotherhood Mutual offers a Religious Freedom Protection Coverage Educational Institution Extension that protects faith-based educational institutions from threats related to:
Acts that would be considered discrimination under Title IX or any other applicable federal, state or local statute, ordinance, or law.
Your ability or your students’ ability to receive federal financial aid under Title IV.
Your ability or your students’ ability to receive financial aid or scholarships through federal, state, or local programs (other than Title IV).
Of course, coverage is determined at the time of a claim, subject to all terms, conditions, and exclusions.
Posted March 9, 2021. Updated April 23, 2021. The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
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