Identity & Human Dignity

LGBTQ+ Discrimination in Employment

Q: Bostock only applies to the specific situation of being fired — it doesn't apply to hiring.

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Q: We're a small organisation with fewer than 15 employees, so Title VII doesn't apply to us.

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Bostock Settled It — Discrimination Based on Sexual Orientation or Gender Identity Is Illegal Under Title VII

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The Situation

What They Said

“We're a faith-based organisation. We don't hire people with your lifestyle.”

LGBTQ+ Americans face significant employment discrimination despite decades of social progress. Before 2020, the legal landscape was uncertain — some courts held that Title VII covered sexual orientation and gender identity discrimination, others did not, and Congress had not amended the statute to add explicit protections. Many LGBTQ+ workers lost jobs or were denied hiring with no federal legal recourse. That uncertainty ended with the Supreme Court's landmark 2020 decision in Bostock v. Clayton County, 590 U.S. 644. The Court, in an opinion authored by Justice Gorsuch and joined by the Chief Justice and four other justices, held definitively that an employer who fires or refuses to hire an individual for being gay or transgender has discriminated 'because of sex' within the meaning of Title VII of the Civil Rights Act of 1964. The logic is straightforward: if a male employee is fired for being attracted to men, but a female employee would not be fired for the same attraction, the male employee has been treated differently because of his sex. The 'faith-based organisation' framing introduces a genuinely contested area of law: whether religious organisations are exempt from Title VII's LGBTQ+ protections. The ministerial exception (from Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)) provides broad protection to religious employers who dismiss ministerial employees. However, this exception does not apply to all employees of religious organisations — it applies to those whose primary duties are religious in nature. A faith-based nonprofit's administrative, maintenance, or support staff typically do not qualify. Note: State law may provide additional protections beyond the federal baseline described here.

The Fallacy

The 'Faith-Based Blanket Exemption' Fallacy

The claim that a faith-based organisation can refuse to hire anyone with a particular 'lifestyle' based on religious identity is a significant overstatement of the religious organisation exemption from Title VII. The exemption — 42 U.S.C. § 2000e-1(a) — allows religious organisations to give preference to members of their own religion in hiring. It does not permit religious organisations to discriminate on the basis of sex, and after Bostock, discrimination on the basis of sexual orientation or gender identity is sex discrimination under Title VII. The ministerial exception recognised in Hosanna-Tabor is broader: it allows religious employers to make employment decisions for ministerial employees based on any criteria, including criteria that would otherwise be discriminatory, because of the First Amendment's protection of religious autonomy in selecting religious leaders. But this exception is carefully limited to employees who perform religious functions — clergy, teachers of religious doctrine, and similar roles. It does not extend to bookkeepers, janitors, security staff, or the many other non-ministerial employees of religious organisations. Furthermore, even for organisations that do qualify for some religious exemption, the scope of what that exemption covers is actively litigated. Courts continue to refine when religious identity provides a basis for adverse employment action. An LGBTQ+ applicant or employee should not simply accept the 'faith-based' shield as a complete bar to any legal recourse without consulting an employment attorney and reviewing whether they qualify as a ministerial employee.

What the Law Says

Your Legal Foundation

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2; Bostock v. Clayton County, 590 U.S. 644 (2020)

§ 2000e-2(a)(1) — Discrimination Based on Sexual Orientation or Gender Identity Is Sex Discrimination

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court's holding in Bostock makes Title VII's prohibition on sex discrimination fully applicable to discrimination based on sexual orientation and gender identity. A faith-based organisation that refuses to hire an LGBTQ+ person in a non-ministerial role is engaging in sex discrimination under 42 U.S.C. § 2000e-2(a)(1). The EEOC has enforcement authority over these claims, and the affected individual may file a charge within 180 or 300 days of the discriminatory act.

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-1(a)

§ 2000e-1(a) — Religious Organisation Exemption — Scope and Limits

“This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

The religious organisation exemption permits a religious employer to require that employees share the employer's religion — it does not authorise discrimination on the basis of sex (including sexual orientation and gender identity after Bostock) in non-ministerial roles. An LGBTQ+ applicant who is denied a non-ministerial position is not protected from employment on the basis of religious belief mismatch, but is protected from denial of employment that constitutes sex discrimination under Bostock's analysis.

What Scripture Says

God's Word on This

Genesis 1:27 (NIV)

“So God created mankind in his own image, in the image of God he created them; male and female he created them.”

Every human being — regardless of sexual orientation or gender identity — is created in the image of God. The imago Dei is not conditional; it is the foundational dignity of every person. A response to this scenario does not require the user to resolve theological debates about sexuality; it requires the recognition that every person made in God's image is entitled to be treated with justice and fairness, and that the law's protection of human dignity reflects this truth.

Romans 13:8 (NIV)

“Let no debt remain outstanding, except the continuing debt to love one another, for whoever loves others has fulfilled the law.”

Whatever theological convictions a faith-based employer holds, the call to love one another — the debt that Paul says never expires — requires treating every person with basic dignity and fairness. The law's prohibition on employment discrimination reflects the minimum standard of that love in the public square: every person is entitled to earn a living without being categorically excluded based on who they are. Love and justice are not competing claims; they point in the same direction.

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What They'll Say Next

Common Counter-Arguments

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They might say: “Bostock only applies to the specific situation of being fired — it doesn't apply to hiring.”

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They might say: “We're a small organisation with fewer than 15 employees, so Title VII doesn't apply to us.”

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