70 F.4th 914
5th Cir.2023Background
- Plaintiffs: Braidwood Management (a closely held for‑profit run on Christian principles) and Bear Creek Bible Church (a church employer) challenge EEOC guidance and Bostock’s application to their employment policies that bar or discipline homosexual or transgender conduct (dress codes, restroom use, refusal to recognize same‑sex marriage).
- Procedural posture: suit filed 2018; stayed for Bostock; amended complaint seeks declaratory relief under RFRA, the Free Exercise Clause, expressive association, and two Title VII‑scope questions; district court granted relief to a certified religious‑business employer class and denied relief to Bear Creek (found statutorily exempt); plaintiffs and EEOC appealed.
- Standing/ripeness: district court found a credible fear of EEOC enforcement (citing EEOC guidance and Harris) and allowed a pre‑enforcement challenge; Fifth Circuit affirmed justiciability.
- Class certification: district court certified broad employer classes; Fifth Circuit found the class definitions overbroad and insufficiently ascertainable and reversed certification, leaving only individual claims to proceed.
- Merits: Fifth Circuit affirmed that Bear Creek qualifies for the Title VII religious‑organization exemption; held Braidwood individually entitled to a RFRA exemption from Title VII as applied; vacated the district court’s Free Exercise constitutional ruling and vacated/adjudicatory holdings about the broader scope‑of‑Title‑VII questions (e.g., bisexuality, sex‑neutral codes) for lack of class posture and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing / ripeness for pre‑enforcement challenge | Plaintiffs (Braidwood/Bear Creek): EEOC guidance + prior enforcement (Harris/Bostock) create a credible, imminent threat; declaratory relief appropriate. | EEOC: No enforcement against these plaintiffs; speculative that EEOC will prosecute; require actual charge/employee/adverse action. | Affirmed standing and ripeness: credible threat exists based on guidance, prior enforcement, and plaintiffs’ admitted policies. |
| Class certification / ascertainability | Plaintiffs sought nationwide classes of employers opposing homosexual/transgender behavior (religious and nonreligious). | EEOC: classes are vague, subjective (state of mind), and require individualized inquiries (sincerity, practices). | Reversed class certifications as overbroad and not sufficiently ascertainable; proceed on individual claims. |
| RFRA as applied to Braidwood (substantial burden & least restrictive means) | Braidwood: complying with Title VII (post‑Bostock guidance) would substantially burden its religious exercise (would force tacit endorsement/employment of employees who violate its beliefs); RFRA requires exemption. | EEOC: government has compelling interest in eradicating workplace sex discrimination; RFRA defense not viable absent concrete acts required to be performed. | Affirmed Braidwood’s RFRA claim: substantial burden shown; EEOC failed to prove a compelling interest tailored to deny an individual exemption or that its policy is least restrictive. |
| Scope of Title VII post‑Bostock (bisexual, sex‑neutral codes, medical transition) | Plaintiffs sought declaratory rulings that Bostock does not reach bisexual orientation and permits sex‑neutral codes excluding practicing homosexuals/transgender persons; sought clarification re: hormone therapy/sex‑reassignment. | EEOC: Bostock extends Title VII protections to sexual orientation and gender identity; enforcement and guidance apply; class relief proper. | Fifth Circuit vacated and declined to decide class‑wide scope questions (class cert reversed); district court’s scope rulings vacated and remanded for further proceedings. |
Key Cases Cited
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (held discrimination based on sexual orientation or gender identity is discrimination "because of sex" under Title VII and noted RFRA/ministerial questions were for future cases)
- EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (EEOC enforcement against a religious employer over transgender‑related dress/restroom policies; Sixth Circuit rejected employer’s RFRA defense; later subsumed into Bostock)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (RFRA protects closely held for‑profit entities from federal actions that substantially burden sincere religious exercise absent compelling government interest and least restrictive means)
- Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (government must show a compelling interest particularized to the claimant when denying religious exemptions; individualized scrutiny under RFRA/Free Exercise contexts)
- Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (RFRA requires the government to demonstrate a compelling interest in applying a law to particular religious claimants)
- Steffel v. Thompson, 415 U.S. 452 (1974) (pre‑enforcement declaratory relief allowed where a genuine threat of prosecution exists)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre‑enforcement standing can be satisfied by a credible threat of enforcement; fact‑specific inquiry)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex discrimination precedent informing Title VII analysis cited in Bostock)
- City of Boerne v. Flores, 521 U.S. 507 (1997) (context on RFRA’s background and judicial review standards)
- Holt v. Hobbs, 574 U.S. 352 (2015) (example of substantial‑burden analysis under religious‑liberty jurisprudence)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (First Amendment associational analysis relied on in other contexts and discussed by courts considering RFRA and associational claims)