When rights collide: Examining conflicts between gender identity, sexual orientation, & religious discrimination protections
| Author | Ashley M Alteri |
| DOI | 10.1177/13582291221096561 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(2) 152–171
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13582291221096561
journals.sagepub.com/home/jdi
When rights collide: Examining
conflicts between gender
identity, sexual orientation, &
religious discrimination
protections
Ashley M Alteri, Dr., J.D., Ph.D.
1
Abstract
In 2020 the U.S. Supreme Court extended federal employment discrimination protec-
tions to individuals based on their gender identity or sexual orientation. While this
decision represents a victory for LGBTQIA+ employees, it did not speak to whether
religious freedom laws would provide a suitable defense for violating this law. After this
decision, we are left with an HR puzzle. When employment discrimination protections
collide, what set of rights, those based on our religious beliefs or those based on our
gender identity or sexual orientation, win out? Existing laws and Court cases suggest that
individuals and corporations may be able to avoid the non-discrimination requirement by
claiming a religious objection to an employee’s gender identity or sexual orientation, but
this issue is far from settled. Accordingly, this paper provides legal analysis of the conflict
and presents advice regarding how to foster an inclusive workplace and ensure that the
rights of all are safeguarded.
Keywords
Employment discrimination, gender identity, religious freedom, sexual orientation,
inclusion
1
College of Business, Tennessee State University, Nashville, TN, USA
Corresponding author:
Ashley M Alteri, College of Business, Tennessee State University, 330 10th Avenue North, Nashville, TN 37203,
USA.
Email: aalteri@tnstate.edu
Introduction
The Civil Rights Act of 1964 established that all people in the United States have the
fundamental right to be free from employment discrimination on the basis o f their race,
color, religion, sex, and national origin. Since 1964, passage of the Pregnancy Dis-
crimination, Age Discrimination, Americans with Disabilities, and Genetic Information
Notification Acts extended employment discrimination protections substantially. How-
ever, for LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex, asexual, and
other identifying community) employees the right to be free from discrimination at work
was a dream that was not realized until 2020 (Ruszkowski, 2019). In June 2020, the
United States Supreme Court issued a landmark 6-3 decision, Bostock vs. Clayton County,
Georgia, that extended federal employment discrimination protections to individuals who
had been deprived of their right to fair treatment on the basis of their gender identity or
sexual orientation (140 S. Ct. 1731).
While Bostock represents a victory for LGBTQIA+ employees, questions remain
regarding the scope of protections. The Supreme Court extended sex-based discrimination
protections to individuals based on their gender identity or sexual orientation but cau-
tioned that their decision did not speak to whether religious freedom laws would provide a
suitable defense or rationale for violating this law. In other words, it is not clear whether
asserting protections under the religious rights provisions of the Civil Rights Act, the
Religious Freedom Restoration Acts, or others would allow either an individual or
corporation to continue to discriminate against an individual at work on the basis of their
gender identity or sexual orientation.
Individuals seeking relief from employment discrimination based on either their re-
ligious beliefs, or gender identity and/or sexual orientation, must evoke the protections of
the Civil Rights Act of 1964. While the relief afforded to individuals based on their gender
identity or sexual orientation are new, the law that these protections derive from is not.
The Supreme Court in Bostock relied upon the original statutory definition of sex dis-
crimination that is included in the Civil Rights Act of 1964. No changes were made to the
law, nor were any new laws written. Instead, the Supreme Court re-interpreted the
meaning of the existing law to now include individuals who have been victims of
discrimination based on their gender identity or sexual orientation. This is an importan t
distinction because it means that the level of scrutiny applied is the same for both forms of
employment discrimination. Therefore, when efforts to safeguard these two liberties are at
odds with each other, neither has a legal upper hand.
Given this, what happens when two individual employment discrimination protections
collide? What set of rights, those afforded based on our religious beliefs or those based on
our gender identity or sexual orientation, win out? Finally, what management approach
should employers take to foster a workplace free from this type of conflict?
A workplace that provides for free expression of both religious beliefs and an em-
ployee’s gender identity or sexual orientation, is possible. However, when these ideals are
in conflict with one and other, the organization must take intentional steps to allow for free
expression by both groups and actively protect each from discrimination. Accordingly,
this paper will examine the tensions present in protecting both sets of rights. In doing so,
Alteri 153
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