12 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP When a disparity in benefits forms the basis of a gender discrimination claim, it is obviously critical that a plaintiff establish their right to those benefits.74 This issue is poised to become especially important for employers and employees in the wake of the Supreme Court’s seminal decision, Bostock v. Clayton County, Georgia,75 which held that Title VII prohibits discrimination on the basis of sexual orientation or gender identity as forms of sex discrimination. That decision has rendered many workplace issues newly relevant, including the question of who qualifies for spousal benefits. For example, in Doe v. Catholic Relief Services,76 a data analyst for a religiously aligned organization alleged he was underpaid because certain health benefits were denied to his spouse even though they were provided to others in the same position. The plaintiff was a man married to a man. He claimed it was a violation of the EPA, among other laws, to provide health benefits to women employees that covered their male spouses while denying those benefits to males spouses of male employees.77 The religious organization employer argued that it retained its religious character by, among other things, maintaining a code of conduct and administering its employee benefits program consistent with its religious values. Those values prevented it from providing spousal benefits to employees’ same-sex spouses.78 Citing the Bostock decision, the court held: “When an employer discriminates against an employee based on sexual orientation, ‘it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.’”79 The court denied the employer’s several attempts to remove itself from the purview of Title VII and the EPA due to its religious affiliation. With respect to Title VII’s exception for employees of religious entities, the court held that the relevant provision, § 702(a), was meant to allow religious organizations to hire only individuals of the same religion; it did not provide blanket protection for religious organizations to discriminate against those who do not share particular beliefs or conduct standards tied to its religious identity. “A plain reading of § 702(a) reveals Congress's intent to protect religious organizations seeking to employ co-religionists, but the reading urged by [employer] would cause a relatively narrowly written exception to swallow all of Title VII, effectively exempting religious organizations wholesale.”80 The court also held that the employer was not protected by the Religious Freedom Restoration Act (“RFRA”).81 The court noted that the Supreme Court had left open the question of Title VII’s interaction with RFRA. The court then reasoned that the plain language of RFRA was directed at restricting activities of the government that might substantially burden the free exercise of religion.82 “This court finds as a matter of law that RFRA restricts the government rather than private parties, and so [employer] may not assert RFRA as an affirmative defense against [plaintiff’s] claims.”83 Finally, the court held that both Title VII and the EPA were generally applicable laws that did not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct, and so did not violate the Free Exercise clause of the First Amendment. The court concluded: “Our Constitution's solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law.”84 This is only one case defining Bostock’s impact on the American workplace. 74 See, e.g., Barney v. Zimmer Biomet Holdings, Inc., No. 3:17-cv-616 JD, 2021 WL 3212383, at *10 (N.D. Ind. July 29, 2021) (holding that the denial of severance benefits to a female Senior Vice President was enough to establish a prima facie case, but that ultimately plaintiff had failed to establish that the denial was due to her gender because, under the company’s policies, she was not entitled to severance: “[employer] has put forth evidence that the difference in severance benefits was based on a factor other than sex; specifically, the difference was based on how the employees left their employment with [employer]. [Plaintiff] has not put forth evidence to place the facts surrounding that rationale in dispute”). 75 Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1744 (2020). 76 Doe v. Catholic Relief Servs., No. CCB-20-1815, 2022 WL 3083439 (D. Md. Aug. 3, 2022). 77 Id. at *1. 78 Id. 79 Id. at *4 (quoting Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1744 (2020)). 80 Id. at *5. 81 That statute provides that “a person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. (quoting 42 U.S.C. § 2000bb-1(c)). 82 Id. at *6. 83 Id. 84 Id. at *7.
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