Indiana RFRA – What does it all mean?
Friday, April 17, 2015
by Sara Blevins
Indiana RFRA – What does it all mean?
It would have been hard to miss the public conversation and controversy surrounding Indiana’s new Religious Freedom Restoration Act (Senate Bill 101) that erupted during the last few weeks. Now that IRFRA has been signed into law, and quickly amended, you may have questions about what it all means and how this impacts HR.
First, a little background. IRFRA is an outgrowth of the federal Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq., passed into law by Congress in 1993. Federal RFRA was enacted as a direct response to a U.S. Supreme Court case, Employment Division v. Smith, 494 U.S. 872 (1990), which Congress believed “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” In that case, the Court held that the First Amendment does not permit a person to use a religious reason to disobey a law that applies to everyone equally (a “neutral law of general applicability”) – in this case, religious use of peyote. In the wake of Smith, Congress wanted the courts to use the same standard that had been applied in previous cases about First Amendment exercise of religion, which is called the “compelling interest test.” Federal RFRA states, in relevant part, that the government shall not substantially burden a person’s exercise of religion unless it can demonstrate that the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest.
In 1997, the U.S. Supreme Court ruled in City of Boerne v. Flores, 521 U.S. 507 (1997), that Federal RFRA could not be applied to the states because it was an unconstitutional use of Congress’ enforcement powers regarding the Fourteenth Amendment of the U.S. Constitution. In response to this case, many states passed their own versions of RFRA. Some are the same as the Federal RFRA law. Some – including Indiana’s – are variations. As of today, twenty-one (21) states have some version of RFRA.
So what does Indiana’s law say? IRFRA says that the government cannot substantially burden a person’s exercise of religion unless it is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. Sounds like Federal RFRA, right? Yes, but IRFRA doesn’t stop there. Here are the key variations:
- “Exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This means that a religious act based on a marginal or “fringe” religious belief could be protected – it does not have to be based on a core religious belief. Like Federal RFRA, this does not apply only to Christian or even main-stream religious beliefs – it applies to all religions.
- “Person” is defined to include not only individuals, but also religious groups and, more controversially, companies (including partnerships, LLCs, corporations, etc.). In order to claim protection under IRFRA, however, what the company does must be compelled by a system of religious beliefs held by the individual(s) that control or have substantial ownership of the company.
- A person whose exercise of religion has been substantially burdened or, is likely to be substantially burdened, may file a lawsuit or raise a defense in a lawsuit based on IRFRA. The government does not have to be a party to this lawsuit, but can join in to defend itself. This is different from other versions of RFRA both because it includes “likely to be substantially burdened,” not just actually burdened, as grounds for a lawsuit or defense and because the government is not required to be a party in any such lawsuit. This broadens the applicability from what other versions of RFRA allow. It also permits an award of reasonable attorney fees to the prevailing party to any lawsuit that is against a government entity.
- Finally, IRFRA states that it does not create a claim against a private employer by any job applicant, employee, or former employee.
What does the “fix” say? After IRFRA was signed into law, public outcry quickly led to enactment of an amendment that makes it clear the IRFRA does not “authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” A “provider” is defined as an individual, partnership, association, organization, LLC, company, corporation, or “other organized groups or persons,” but does not include churches or religious non-profit organizations (including affiliated schools). “Provider” also does not include “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when . . . engaged in a religious or affiliated educational function . . .”
Does IRFRA prohibit all discrimination in employment based on sexual orientation or gender identity? No, it does not. There has been some confusion and misinformation on this point. There is no general protection based on sexual orientation or gender identity under Indiana law. The IRFRA “fix” only applies to situations where the discrimination is a result of the provider exercising his/her/its religion. This is not a general prohibition against employment discrimination based on sexual orientation or gender identity.
Do other laws prohibit employment discrimination based on sexual orientation or gender identity? Yes, but not in all places and not in all circumstances. Some Indiana municipalities and counties have ordinances that prohibit discrimination in employment based on sexual orientation and/or gender identity. Municipalities and counties with such ordinances include: Indianapolis/Marion County, Bloomington/Monroe County, Lafayette/West Lafayette/ Tippecanoe County, Michigan City, South Bend, Fort Wayne, Terre Haute, Evansville, and New Albany.
Indianapolis Marion County Code of Ordinances Section 581-403 prohibits “exclusion from or failure or refusal to extend to any person equal opportunities or any difference in the treatment of any person by reason of race, sex, sexual orientation, gender identity, religion, color, national origin or ancestry, disability, age, or United States military service veteran status.” Religious non-profit organizations and affiliated schools are exempt from this prohibition, as are fraternal non-profit organizations and social clubs not open to the general public.
In addition, federal non-discrimination laws have been applied by the U.S. Equal Employment Opportunity Commission (“EEOC”) and some courts to prohibit discrimination against transgender individuals. The EEOC and some courts have also applied federal non-discrimination laws to prohibit discrimination based on sexual orientation in very fact-specific circumstances where the discrimination manifests as gender discrimination (i.e. male fired for conduct that would have been permitted if a female employee had done it).
What happens now? IRFRA will become effective July 1, 2015. Over time, the courts will work through how IRFRA applies to particular circumstances. Also, advocates for equality undoubte
dly will continue to urge the Indiana General Assembly to add sexual orientation and gender identity as protected classes under Indiana’s general anti-discrimination laws.
If you or your organization has specific questions about how IRFRA will affect your employees, please contact your attorney. This process will likely involve a good deal of uncertainty until test cases make it through the courts, but general guidance from the application of other RFRA laws can be helpful.
This article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or how the law applies to you.
About the Author
Sara Blevins is a partner at Lewis & Kappes, P.C. where she practices employment law and general civil litigation. She can be reached at firstname.lastname@example.org or (317) 639-1210. Sara serves on the IndySHRM Legislative Affairs Committee.