EEOC-Initiated Litigation - 2022 Edition

72 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP this test, holding that the first element was not disputed and “[f]or the second, the religious employers are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” Since plaintiffs established a “substantial burden,” defendants were required to show that the “substantial burden is justified by a compelling interest and that they have chosen the least restrictive means of advancing that interest.” The court found the defendants’ “overly broad formulation of its compelling interest” – that the government has a compelling interest “in eradicating workplace discrimination” – to be without merit. Rather than relying on broadly formulated interests, courts must scrutinize the “asserted harm of granting specific exemptions to particular claimants”; the relevant question is “whether the government has a compelling interest in denying employers like [the institution] a religious exemption.” Further, the court held that “[f]orcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest, especially when Defendants are willing to make exceptions to Title VII for secular purposes.” Accordingly, the court granted summary judgment to the plaintiffs as to their RFRA claim. The court also analyzed whether, under Botstock v. Clayton County , the plaintiffs’ policies against bisexual conduct, concerning certain sexual activities and dress codes, prohibiting hormone treatments and genital surgery, and regarding sex-specific restrooms, violated Title VII. The court first concluded that the proper test to be applied was “favoritism, plus blindness to sex if the secondary trait is homosexuality or transgenderism.” The court reasoned that the “simple favoritism test” could not be “fully recognized with the Supreme Court’s analogies, and neither can the blindness test standing alone given Botstock’s articulation of the standard.” The court concluded that the polices against bisexual conduct “inherently target[] sex” and therefore violated Title VII, to the extent that an “individual who is bisexual inherently identifies as homosexual to some extent, even if they also identify as heterosexual, because bisexuality is some combination of the two orientations.” The court similarly held that the policies prohibiting hormone treatments and genital surgery violated Title VII since they would only function to discriminate against individuals with gender dysphoria. As to the policies regarding certain sexual activities, dress code, and sex-specific restrooms, the court found that such policies comported with Title VII because they applied evenly to heterosexual and homosexual activity, did not “treat one sex worse than the other,” and therefore did not discriminate “because of sex.” D. Judgments And Remedies In EEOC Litigation 1. Attorneys’ Fees, Costs, And Sanctions EEOC v. Doherty Enterprises Inc. , No. 14-CV-81184 (S.D. Fla. May 18, 2021). The EEOC filed an action against Defendant for alleged violation of Title VII of the Civil Rights Act of 1964 on the basis that Defendant maintained an arbitration agreement that allegedly interfered with the rights of employees to file discrimination charges with the EEOC. The Court previously had ruled that the arbitration agreement did not interfere with the ability of an applicant or employee to file a charge with the EEOC and the parties eventually settled the matter. Defendant subsequently moved for an award of attorneys’ fees and costs as the prevailing party. The Court denied the motion. Defendant argued that the EEOC had no factual basis for the lawsuit because: (i) the clear language of the agreement was unambiguous; and (ii) when the EEOC filed the lawsuit, it was not aware of any employee that had been prevented from filing a charge of discrimination with the EEOC. Id . at 2. Defendant also asserted that the EEOC had no legal basis for the lawsuit and that it acted in bad faith by falsely claiming that it did not obtain the arbitration agreement from a charge of discrimination and by concealing the source of the document leading to the lawsuit. Id . The EEOC argued that the lawsuit was not frivolous when filed, nor did it become frivolous, and that it prevailed on novel legal issues, such as permitting a § 707(a) lawsuit without a charge and without engaging in conciliation. Id . at 3. The EEOC also contended that the lawsuit was not frivolous because: (i) Defendant never moved to dismiss on the wording of the agreement; (ii) Defendant ultimately changed its policy; and (iii) Defendant settled the lawsuit. The Court ruled that the lawsuit was not frivolous when it was filed, and it did not become frivolous later. The Court reasoned that it had agreed with the EEOC that it could bring a lawsuit under § 707(a) in the absence of a charge and without conciliation, and had determined that the case was not moot even after the arbitration agreement had been modified. The Court also found that the