Job Bias Suits Test Reach of First Amendment Liability Shield

Religious and secular-based employers are teeing up a constitutional test over a First Amendment doctrine to escape discrimination liability, a practice legal scholars say clashes with case law that traditionally limits its use to protecting the core message and values of certain organizations.

Federal courts are wading into legal battles to determine which employers can use the “expressive association” doctrine to justify excluding or terminating employees whose identities or conduct allegedly conflict with their mission, particularly in disputes concerning LGBTQ+ rights and reproductive decisions.

Supporters of the doctrine argue that anti-discrimination laws can hinder faith-based institutions’ promotion of their beliefs.

But critics contend that the expressive association defense goes beyond the US Supreme Court’s “ministerial exception,” which permits faith-based institutions to make employment decisions for roles central to their religious mission without government interference. The expansion of the defense could enable discrimination against workers not primarily responsible for advancing their employers’ religious tenets, they said.

“The notion that employers have expressive association rights because of their relationship with employees is a pretty new argument,” and has been gaining traction, said Elizabeth Sepper, an anti-discrimination and religion law scholar at the University of Texas-Austin School of Law, who has written extensively about the issue.

“That would allow them to discriminate against employees from the top to the very bottom,” she said. But “most employees are not owners of a firm and making policy, so they’re not really expressing” a particular message on the organization’s behalf.

Increased judicial scrutiny puts courts in a statutory and constitutional tug-of-war to resolve the tension between where the right to associate for shared beliefs ends and the right to equal opportunity begins, employment law attorneys and legal scholars said.

Courts have to carefully balance the needs of religious entities while acknowledging employees’ civil liberties, because a sweeping endorsement of the defense risks undermining civil rights goals, said Michelle E. Phillips, a principal at Jackson Lewis PC.

Civil rights protections “ensure equal access and fairness, where no one person’s rights prevail over another’s right,” she said. These cases “create a tension in the law.”

Legal Landscape

Cases regarding the doctrine’s applicability under federal and state anti-bias laws are pending before several courts, including in two circuits.

In a matter of first impression, the US Court of Appeals for the Fourth Circuit is considering Liberty University’s interlocutory appeal to dismiss a transgender former employee’s lawsuit accusing the evangelical Christian institution of illegally firing her after she disclosed her gender identity.

The issue is also before the Ninth Circuit in a case challenging Washington state’s decision to pull funding from a Christian youth ministry over its practice of only hiring those who share its views on marriage and sexual morality.

And anti-abortion organizations invoked the doctrine in their March suit over Illinois’s ban on employment bias based on reproductive health decisions.

Entertainment and media companies have likewise invoked the doctrine to justify employment decisions regarding artistic expression tied to protected characteristics like race and gender. Former “The Mandalorian” star Gina Carano’s lawsuit against Walt Disney Co.—for firing her over her online posts the company considered antisemitic and transphobic—is considered a test case.

Disney asserted a constitutional right as an artistic entity to remove cast members whose message it deemed threatened its expression. This defense collides with California anti-bias law, which, unlike Title VII, broadly protects workers’ off-duty conduct.

The US Supreme Court’s 2000 Boy Scouts of America v. Dale decision marked the first time the justices held that expressive association overrides governmental interest in nondiscrimination. Dale held that laws and regulations “might be unconstitutional” if they intrude into the internal affairs of an organization, or force a group to accept members it doesn’t desire.

But in subsequent cases, the Supreme Court clarified that an organization can’t use the doctrine by simply claiming that the mere acceptance of a member would impair its message, attorneys said.

Still, litigants are invoking Dale in the employment context.

In 2023, a Second Circuit panel ruled that a crisis pregnancy center plausibly alleged that New York’s anti-bias reproductive workplace law, similar to Illinois, violated its right to hire individuals whose beliefs align with its mission.

In another case challenging the New York law, a Second Circuit panel recently rejected the state’s argument that employers lack the same expressive association rights as voluntary membership groups. But the court clarified that companies can’t evade liability by claiming that hiring someone from a specific group would compromise their mission.

Contexts Growing

UT-Austin’s Sepper, who tracks cases invoking expressive association, is seeing the doctrine used in “odd” and extreme contexts.

Uber Technologies Inc. failed to block a Seattle law regulating the deactivation of app-based workers, claiming it violated its right to expressive association.

But the law doesn’t implicate expressive conduct, and “Uber failed to identify any expressive association that it engages in,” a district judge ruled.

The Ninth Circuit is reviewing Uber’s appeal.

“The fact that we’re seeing a behemoth company raising expressive association defense suggests that if it gets to do so, it will have real appeal in the corporate world to avoid employment discrimination lawsuits,” Sepper said.

As the legal landscape evolves, the doctrine’s proponents rely on rulings supporting Title VII’s exemption, which gives religious organizations some autonomy in their employment practices related to religion.

“Congress recognized that forcing religious organizations to hire people who disagree with their religious views threatens faith-based organizations’ continued viability, just like if a secular company was forced to hire an employee who dissents from the company’s goals and values,” said John Bursch, senior counsel at the conservative Alliance Defending Freedom.

“If the government can compel religious nonprofits to hire those who fundamentally disagree with their religious beliefs, it can undermine those organizations from the inside out, extinguishing their participation in public life,” he said.