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Religious Rights in the Workplace: Navigating the Minefield of Antidiscrimination Law and Religious Protection

Growing Tension Between Title VII and RFRA, First Amendment Considerations

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, November 1, 2023

Recorded event now available

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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.


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.



  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


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?


Fox, Stephen
Stephen E. Fox

Sheppard Mullin

Mr. Fox leads Sheppard Mullin’s Texas employment law practice. Consistently recognized by peers and clients as a...  |  Read More

Grisham, J. Gregory
Greg Grisham

Of Counsel
Fisher & Phillips

For 30 years, Mr. Grisham has successfully counseled and represented employers in all areas of labor and employment...  |  Read More

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