Abstract
In the last couple of decades, pursuit of what Robin West has called “exit rights” has played an increasingly important role in the development of antidiscrimination law. From religiously affiliated schools seeking to insulate employment decisions for employees through a judicially crafted ministerial exception, to corporate challenges to the Affordable Care Act’s contraceptive mandate using the Religious Freedom Restoration Act, employers have sought to escape the burdens of complying with legal protections for workers. The current wave of litigation seeks broad exemptions from antidiscrimination laws for two types of employers: for-profit businesses who wish to discriminate against employees based on the employers’ religious beliefs, and state and local government employers in states with socially conservative majority or super-majority governments. The Court’s Dobbs decision will almost certainly accelerate this trend, providing new grounds of argument for employers to seek exit from a variety of antidiscrimination requirements. This paper explores these issues, primarily in the context of two cases, Bear Creek Bible Church v. EEOC (now Braidwood v. EEOC) and Kelley v. Azar (now Braidwood v. Becerra), both of which seek to avoid application of federal law to for-profit entities that wish to discriminate. In the course of that discussion, this paper also considers related litigation brought by the same attorney, who also crafted one of the most sweeping and problematic abortion statutes in the country, SB 8, along with a network of socially conservative legal organizations.
Recommended Citation
McCormick, Marcia L.
(2024)
"Dobbs and Exit in Antidiscrimination Law,"
Employee Rights and Employment Policy Journal: Vol. 27:
No.
2, Article 5.
Available at:
https://scholarship.kentlaw.iit.edu/erepj/vol27/iss2/5
