BarbriSFCourseDetails
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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, November 1, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss the growing tension between Title VII's protection of an individual's right to be free from sex discrimination and the Religious Freedom Restoration Act's (RFRA) preservation of an individual's right to freely practice their religious beliefs. The panel will compare recent case law creating a circuit split on this subject and discuss the conflicting workplace obligations facing employers when one set of rights infringes on the other. The panel will provide key considerations and best practices for navigating this potential employment minefield.

Faculty

Stephen E. Fox
Partner
Sheppard Mullin, LLP

Mr. Fox has spent more than 25 years in boardrooms and courtrooms acting as a trusted advisor and litigation advocate for clients – from Fortune 500 corporations to entrepreneurs – in complicated and often high-profile business and employment disputes. His advice/counseling and trial practice is focused on complex business and employment litigation. In the area of labor and employment law, clients look to Mr. Fox for proactive and practical recommendations to avoid litigation. But, when disagreements or disputes end up in the courtroom or in arbitration, he is a vigorous advocate, successfully trying cases in a myriad of areas, including non-competition violations; trade secret theft; executive departures; wage and hour compliance and collective actions; corporate downsizing; leaves of absence (ADA and FMLA); sexual harassment investigations; and compliance with federal/state anti-discrimination and retaliation statutes. Mr. Fox’s ability to synthesize complex facts and arguments into understandable and memorable pieces of information makes him a compelling courtroom advocate, as well as a frequent resource to print, broadcast and radio media.

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Greg Grisham
Partner
Fisher & Phillips LLP

Mr. Grisham has over 30 years of successful experience counseling and representing employers in all aspects of workplace law in Tennessee and across the U.S. He has helped employers avoid claims, charges, and lawsuits with a focus on preventative practices, including counseling on discipline, termination, demotion, promotion and other workplace changes,  investigations, wage and hour compliance, reasonable accommodation assessment, supervisor training and the review of employment policies and procedures. Mr. Grisham has successfully litigated hundreds of administrative charges, employment lawsuits, and arbitration demands on behalf of employers, including federal and state law claims alleging discrimination, harassment, retaliation, wrongful termination, invasion of privacy, defamation, breach of contract, and wage and hour violations, among others. He represents employers in the prosecution and defense of trade secret claims, and in the enforcement of post-employment restrictive covenants such as non-compete, non-solicitation, and non-disclosure agreements. Mr. Grisham also represents employers in unfair labor practice and union representation election proceedings before the National Labor Relations Board. He is a Member of the American Employment Law Council, a Fellow of the College of Labor and Employment Lawyers and of the American Bar Foundation. Mr. Grisham is a past Chair of the Memphis Bar Association's L&E Section and of the Tennessee Bar Association's L&E Section where he currently serves on the Executive Committee.

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Description

In Braidwood Management v. the Equal Employment Opportunity Commission (2023), the Fifth Circuit held that a private business with sincere religious beliefs against gender-nonconforming conduct is exempt from Title VII where the employer required employees to wear clothes conforming to their biological gender. The court found that despite Title VII's prohibition of discrimination based on sexual orientation, prohibiting such discrimination is not a sufficiently compelling interest to override religious freedom in all cases.

However, in Equal Employment Opportunity Commission v. R. G. Harris Funeral Homes Inc. (2018), the Sixth Circuit came to the opposite conclusion, holding that gender identity discrimination is a per se form of sex discrimination prohibited by Title VII and dismissing the employer's religious belief that continuing to employ a transgender employee would have amounted to an endorsement of the employee's decision to transition. These cases have created a circuit split and demonstrate the growing tension between employer and employee rights to religious freedom and freedom from discrimination.

Adding to this tension are First Amendment concerns. In 303 Creative L.L.C. v. Elenis (2023), the U.S. Supreme Court held that forcing a graphic designer to create wedding websites for same-sex couples in compliance with Colorado's antidiscrimination law would have violated her First Amendment rights. This case has employment implications where workers may be emboldened to assert First Amendment objections to antidiscrimination laws and workplace policies where these infringe on their religious beliefs.

Listen as our expert panel addresses the growing tension between Title VII and RFRA as well as First Amendment considerations and the issues these cause for employers. The panel will also provide best practices for employers to navigate their legal obligations and minimize risk.

Outline

  1. Title VII vs. RFRA
    1. Overview of Title VII and RFRA
    2. Circuit split and what it means for employers
      1. Braidwood Management v. EEOC
      2. EEOC v. R. G. Harris Funeral Homes Inc.
  2. First Amendment considerations
    1. 303 Creative L.L.C. v. Elenis
    2. Possible employment impact
  3. Key issues and considerations for employers
    1. Employer religious beliefs and company policies that conflict with antidiscrimination laws
    2. Employee religious objections and the undue hardship defense post-Groff v. DeJoy
    3. State law considerations
  4. Best practices for compliance and risk mitigation

Benefits

The panel will review these and other important considerations:

  • How should counsel advise clients when an employee's or employer's religious beliefs conflict with the employer's obligations under Title VII and other antidiscrimination laws?
  • What are First Amendment considerations that counsel and their clients should take into account when enforcing anti-discrimination policies in the workplace?
  • What state law considerations should be kept in mind?
  • How does the growing tension between religious freedom and the right to be free from discrimination affect the creation and enforcement of workplace policies?