THE FIFTH CIRCUIT’S ruling that religious employers are not liable for LGBTQ+ workers’ discrimination claims will likely lead to more litigation about the scope of workplace civil rights protections, Khorri Atkinson reports.

• The decision mostly affirmed that the Religious Freedom Restoration Act shields businesses like the Christian-run health-care provider plaintiff from gender identity and sexual orientation bias claims under Title VII of the 1964 Civil Rights Act. Also, a religious nonprofit could refuse to hire and can fire LGBTQ+ employees, the appeals court said.
• Among the questions left open are what a private, for-profit business must show to be considered a religious employer covered by the bias lawsuit shield and whether a company could establish discriminatory sex-neutral codes of conduct. The religious carveout to LGBTQ+ rights “was poorly sketched out” by the court and leaves employers in need of more guidance, said Corey Devine, a partner at Muskat, Mahony & Devine LLP.
• The court said because Title VII’s religious exemptions shield one of the plaintiffs from LGBTQ+ discrimination liability, the organization didn’t need a judgment granting it separate protections under the Religious Freedom Restoration Act. The “case is setting up a future battle” at the Supreme Court over the interplay between the two statutes, said John L. Shahdanian II, chair of Trenk Isabel Siddiqi & Shahdanian PC’s labor and employment group. Read More

THE BIDEN ADMINISTRATION ordered the Health and Human Services Department to focus on ensuring contraceptive access as some states enact reproductive rights bans, Ian Lopez reports.

• Under an executive order, HHS Secretary Xavier Becerra is tasked with considering guidance for private health insurers to fully cover contraceptives, weighing options for Medicaid to broaden the reach of low-cost family planning services, and taking other actions.
• It is the third executive order on access to reproductive health services the administration has issued since last year’s Dobbs decision by the Supreme Court. Since then, contraception access has “become even more important,” said Jennifer Klein, assistant to the president and director of the White House Gender Policy Council. Read More

ONE-THIRD OF THE SUPREME COURT recently signaled that they are open to the idea that whistleblower provisions in the False Claims Act are unconstitutional, Daniel Seiden reports.

• Lone Dissent: The Supreme Court earlier this month handed down an 8-1 ruling holding that it was proper for the Justice Department to dismiss a whistleblower’s FCA suit that it viewed as too costly. Justice Clarence Thomas, the lone dissenter, wrote that the law’s whistleblower provisions have a separation-of-powers problem, inhabiting “something of a constitutional twilight zone.”
• Justice Brett Kavanaugh, in a concurrence joined by Justice Amy Coney Barrett, said he agreed with Thomas’ Article II concerns, but wrote the court should consider those issues “in an appropriate case.” Given that there seem to be three votes in favor of the position, defendants may start to raise the issue early on in proceedings.
• Defendants “will surely piggyback on Justice Thomas’ dissent in hopes of reopening the debate, but the weight of precedent and history is manifestly against them,” said Chris McLamb, who represents whistleblowers with Constantine Cannon LLP. Read More

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