Employer Conscience after Hobby Lobby and the Continuing Conflict between Women's Rights and Religious Freedom

Abstract

Thirty-seven years have passed since Congress amended Title VII of the Civil Rights Act of 1964 to declare that workplace discrimination on the basis of pregnancy, childbirth, or related medical conditions is illegal sex discrimination. Yet, women in the workplace today continue to experience high levels of discrimination, particularly as it relates to their reproductive capacity or choices. Oftentimes, religious beliefs form the basis for the sex stereotypes that have been used to justify discrimination against women. This Article examines the ongoing conflict between women’s rights and religious liberty interests by discussing the risks associated with for-profit employer conscience exemptions to current anti-discrimination laws. The Article begins in Part I, explaining the origins of prohibitions against sex discrimination in employment and the protections they have provided since their enactment. In Part II, the Article examines well-established religious exemptions to anti-discrimination laws found in statutory and case law. Part III reviews the majority reasoning in Hobby Lobby within the anti-discrimination framework and explores how the decision in that case could expand current religious exemptions. Part IV analyzes whether an employer can use RFRA as a shield to defend itself against discrimination claims brought by or on behalf of employees, and concludes that, while an employer can do so, a RFRA defense should fail when applied to anti-discrimination laws, notwithstanding the Hobby Lobby decision. Part V cautions against the expansion of the corporate religious liberty interest and employer conscience exemption created in Hobby Lobby. Part VI concludes. Throughout the Article, the role of legislation and case law examining or prohibiting workplace discrimination against women based on their reproductive capacity are used as the case study for the impact of the post-Hobby Lobby legal landscape.