Referencing the overturning of Roe v. Wade, the letter said: “It is inconceivable that our nation’s highest court, having just recently held that the Constitution does not enshrine a right to an abortion, would now interpret Title VII to forbid or chill workplace speech on this subject.”
The bishops’ letter said that federal courts on the lower levels are “divided” on the question of whether Title VII’s protections against sex-based discrimination include an individual’s contraceptive use.
However, it went on to say that the only appellate level court to rule on the issue has said that contraceptives are not protected under sex-based discrimination in Title VII, citing In re Union Pacific Railroad Employment Practices Litigation from the 8th Circuit.
In that 2007 case, the court held that a Nebraska company that didn’t include prescription contraceptive coverage was not in violation of discrimination under Title VII.
The letter said that “workplace speech opposing artificial contraception, like speech opposing abortion, is not based on sex and therefore does not constitute sexual harassment under Title VII.”
“As it happens, both men and women may practice or refrain from practicing artificial means of preventing conception, whether temporarily (including through the use of condoms) or permanently (sterilization), further undermining the claim that opposition to artificial contraceptives is based on sex,” the letter said.
Additionally, the letter said that forbidding workplace speech opposing contraceptives would pose the same constitutional issues as with abortion.
“For these reasons, we believe that references to contraceptives in the guidance are problematic and should be removed,” the letter said.
Gender identity and sexual orientation
The bishops raised two specific issues in regard to the commission’s inclusion of gender identity and sexual orientation.
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“First, the commission comes perilously close to reading Title VII as a speech code by suggesting that ‘misgendering’ an employee (that is, referring to an employee by their actual sex) or uttering critical speech on the issue of gender identity or sexual orientation may constitute sexual harassment,” the letter said.
“Second, the proposed guidance reads Title VII to require that at least some men be allowed in private areas reserved to women and that at least some women be allowed in private areas reserved for men, to include locker rooms and restrooms,” the letter said.
“Respectfully, we believe the proposed guidance is wrong on both counts,” it said.
Additionally, the letter said that an individual may have a strong interest in refusing to identify someone as a gender incongruent with their biological sex because of religious or philosophical beliefs.
The letter said that interpreting Title VII to restrict speech on these issues is both “content-based” and “viewpoint-based” because “it prohibits speech on one side of the issue but not the other.”
The letter also addressed the problem of sex-specific workplace areas, saying that the proposed guidance is “not correctly applied to require employers to permit the admission of persons of one sex to areas, such as restrooms and dressing areas (e.g., locker rooms), that for reasons of privacy (and even for the prevention of sexual harassment) are lawfully reserved to members of the opposite sex.”